Circumstances excluding the criminality of an act: concept and types

Definition

This institution of law is not new; it existed long before the adoption of the Constitution of the Russian Federation in 1993. Only its subspecies changed; the range of facts expanded every year. Other countries also adhere to a similar position and enshrine it in legislation.

So, in short, circumstances that exclude the criminality of an act are actions that are outwardly very similar to crimes, since they also cause harm to any interests protected by law, however, committed without guilt or wrongfulness. They do not contain corpus delicti, since the last two necessary signs of the subjective side are missing. Consequently, the persons who committed them are not subject to liability under the Criminal Code of the Russian Federation and punishment.

Formally, at the time of such “crimes,” they realize their social significance and wish to bring even greater public benefit.

Conditions of legality

Actions to be recognized as the above circumstances must cause harm to the interests protected by criminal law, and there must also be a legal prohibition on their commission.

We can identify general conditions that are inherent in almost all of these factors:

timeliness of measures taken;
proportionality;
preventing the occurrence of greater harm than was caused;
aimed at eliminating the threat, protecting the individual or society as a whole;
the danger must be real and present.

For specific subtypes, the conditions of legality are described in separate articles of the Criminal Code of the Russian Federation.

Thus, the concept, types and meaning of circumstances excluding the criminality of an act must be known in order to distinguish them from banal crimes and not condemn innocent persons. In addition, enshrined in law, they encourage legal activity and literacy in citizens.

Differences from crimes

The legal norms of the Criminal Code of the Russian Federation regulating these circumstances are primarily based on the provisions of the Constitution of the Russian Federation on rights and freedoms (to life, liberty and security, personal dignity, etc.).

The main special features of the factors under consideration are the following:

no guilt;
the harm caused is socially useful or neutral (acceptable);
no illegality;
exclusion of criminal prosecution.

All these properties, of course, are attributed by legal doctrine to ideal circumstances that exclude the criminality of an act. In reality it turns out differently. In one case, a person may not assess his own strengths while defending himself and cause significant disproportionate harm to the attacking person, or guilt may be present, but without intent, due to negligence or negligence, etc. Therefore, the legislator stipulates that specially authorized bodies must give a legal assessment of such actions - investigation, prosecutor's office, court. And as soon as all the conditions of legality are established, the case must be terminated, since what was committed is not a crime. As you can see, the line between circumstances excluding the criminality of an act and criminal liability is very thin; even these authorities cannot always give a correct understanding of what happened.

Let's say that necessary defense is often reclassified as a socially dangerous act - exceeding the limits of necessary defense, for which criminal liability is already provided.

Circumstances excluding criminal liability

Criminal liability.

Criminal liability

is a complex social and legal consequence of committing a crime, which includes four elements:

ü the obligation of a person, based on the norms of criminal law and arising from the fact of committing a crime, to give an account of what he has done to the state represented by its authorized bodies;

ü a negative assessment of the committed act expressed in a court verdict and censure of the person who committed this act,

ü the punishment or other measure of a criminal legal nature assigned to the perpetrator;

ü criminal record as a specific legal consequence of conviction with serving the assigned sentence.

Essence

criminal liability is expressed in the obligation of the person who committed the crime to give an account to the state of what he did, to be convicted and punished. The basis of criminal liability is what the person who committed the crime is criminally responsible for. If the socially dangerous act committed does not contain any elements of a crime described in the law, then criminal liability cannot arise.

Criminal liability

- this is a conviction of a person and a socially dangerous act committed by him, expressed in a court conviction that has entered into legal force, associated with adverse consequences for the person in the form of punishment or other measures of a criminal legal nature and a criminal record.

Criminal liability begins on the day the conviction comes into force and ends with the expungement or expungement of the criminal record.

Criminal prosecution is carried out by the court.

Depending on the content, criminal liability can be of three types (forms):

1) criminal liability, consisting of: conviction in a guilty verdict of a guilty person and what he has done; assignment of punishment in the sentence; criminal record;

2) criminal liability may consist of a court conviction and suspended sentence;

3) when releasing minors from punishment in accordance with the use of compulsory educational measures, criminal liability consists only of the fact of conviction, which does not create a criminal record. The basis of criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code of the Russian Federation.

Criminal liability can exist and be realized only within the framework of criminal law. The subjects of criminal law relations, as can be seen from its definition, are, on the one hand, the person who committed the crime, and on the other hand, the state, which acts in the person of the body authorized by it (court). The content of the criminal legal relationship is the corresponding rights and obligations of the subjects. The state has the right to demand from the offender an account of what he has done, to subject him to conviction and measures of criminal coercion. Corresponding to this right of the state is the obligation of the offender to account to the state for his actions, to be subject to conviction and criminal law coercive measures. At the same time, the offender has the right to answer only on the basis of the law violated (i.e. for a specifically committed crime) and only within the limits outlined by law.

Circumstances excluding crime

- these are acts aimed at eliminating the threat created for objects of criminal legal protection by causing harm, recognized as socially useful and socially expedient. Formally, these acts fall under separate provisions of the Special Part of the Criminal Code, but since they do not contain a material sign of a crime (public danger), they do not entail criminal liability. In addition, in contrast to minor acts, acts (circumstances) that exclude crime are socially useful or socially neutral.

The criminal law establishes six types of circumstances excluding the criminality of an act:

1) necessary defense (Article 37 of the Criminal Code of the Russian Federation); 2) causing harm during the detention of a person who committed a crime (Article 38 of the Criminal Code of the Russian Federation); 3) extreme necessity (Article 39 of the Criminal Code of the Russian Federation); 4) physical or mental coercion (Article 40 of the Criminal Code of the Russian Federation); 5) justified risk (Article 41 of the Criminal Code of the Russian Federation); 6) execution of an order or instruction (Article 42 of the Criminal Code of the Russian Federation).

Necessary defense

- this is the lawful protection of the personality and rights of the defender and other persons, as well as the interests of society and the state protected by law from a socially dangerous attack by causing harm to the attacker. The main distinguishing feature of necessary defense, separating it from other circumstances that exclude the criminality of the act, is causing harm to the offender.

Causing harm when detaining a person who has committed a crime

- a circumstance that excludes the criminality of an act in which it is permissible to cause harm to a person who has committed a completed criminal act and is trying to avoid responsibility for it, in order to detain him for transfer to law enforcement agencies and prevent this person from committing new crimes. This circumstance differs from necessary defense in that the harm is caused at the moment when the offense is no longer present, when the offender has already completed the actions aimed at causing criminal harm.

Urgent necessity

- one of the circumstances that excludes the criminality of an act in cases where a person, in order to prevent damage to his personal interests, the interests of other persons, society and the state, is forced to cause harm to other protected interests. The difference between extreme necessity and necessary defense and similar institutions of other branches of law is that harm is caused not to the person who created the danger of harm, but to third parties.

Physical or mental coercion

- one of the circumstances excluding the criminality of the act. Physical or mental coercion is the unlawful use of violence (physical or mental) against a person, which is carried out with the aim of causing that person to commit a socially dangerous act against his will. Liability in such a situation is excluded due to the fact that the actions are committed by the person against his own will and, therefore, innocently.

Justified risk

- represents lawful behavior (action or inaction) of a person aimed at achieving a socially useful goal, the implementation of which is likely to result in adverse consequences, including causing harm to interests and benefits protected by criminal law.

Execution of an order or instruction

- a person who has carried out socially dangerous actions within the framework of the execution of an order or instruction that is obligatory for him may be released from liability. The conditions for exemption from liability for the execution of an order are: The requirement to perform certain actions must come from the competent authority or person vested with the appropriate powers.

Prosecutor of the criminal justice department, lawyer 1st class A.P. Shmelev

Criminal liability.

Criminal liability

is a complex social and legal consequence of committing a crime, which includes four elements:

ü a negative assessment of the committed act expressed in a court verdict and censure of the person who committed this act,

ü the punishment or other measure of a criminal legal nature assigned to the perpetrator;

ü criminal record as a specific legal consequence of conviction with serving the assigned sentence.

Essence

Criminal liability

Criminal liability begins on the day the conviction comes into force and ends with the expungement or expungement of the criminal record.

Criminal prosecution is carried out by the court.

Depending on the content, criminal liability can be of three types (forms):

1) criminal liability, consisting of: conviction in a guilty verdict of a guilty person and what he has done; assignment of punishment in the sentence; criminal record;

2) criminal liability may consist of a court conviction and suspended sentence;

Circumstances excluding crime

The criminal law establishes six types of circumstances excluding the criminality of an act:

Necessary defense

Causing harm when detaining a person who has committed a crime

Urgent necessity

Physical or mental coercion

Justified risk

Execution of an order or instruction

Prosecutor of the criminal justice department, lawyer 1st class A.P. Shmelev

Varieties

The Criminal Code of the Russian Federation devotes a separate chapter, the eighth, to circumstances excluding the criminality of an act.

Currently there are six types:

necessary defense;
coercion (physical/mental);
extreme necessity;
reasonable risk;
execution of orders/instructions;
causing harm during the arrest of a criminal.

Thus, these conditions represent either the exercise of one’s subjective right (necessary defense), or the fulfillment of official duty (reasonable risk), or the fulfillment of legal obligations (order). In some cases, these grounds may merge (for example, during detention).

In general, no matter what you call these factors, the circumstances that exclude the criminality of an act always remain special, one might say extraordinary.

Scientists specializing in criminal law also identify other reasons on the basis of which the wrongfulness of an act can be eliminated, for example, the permission of the victim, professional duties, etc.

Necessary defense

In fact, it represents protection against crime. This may be personal defense of one’s property, home, etc. property, interests of society protected by law, from unlawful encroachment by causing harm to the criminal.

To recognize the defense as forced, the following conditions are necessary: the presence, reality and social danger of the encroachment. Otherwise, the defense will be imaginary and will not be one of the circumstances excluding the criminality of the act.

The conditions for legality are timeliness and proportionality.

The law also provides a term such as “exceeding the limits of necessary defense.” This means that the defending person used techniques that caused more harm to the attacking person than allowed. For example, one attacks with fists, and the other defends himself with a knife, there is a clear discrepancy in means, which means that greater damage will be caused to the health of the criminal. As a result, the defending person bears criminal liability if intent is established in his actions.

The concept and types of circumstances excluding the criminality of an act

Definition 1
Circumstances excluding the criminality of an act are conditions recognized by criminal law under which acts (actions or inactions) containing signs of the objective side of a crime provided for by criminal law do not entail criminal liability.

Circumstances excluding criminality include (Articles 37-42 of the Criminal Code):

necessary defense;
causing harm to a person who committed a crime during his arrest;
extreme necessity;
physical (mental coercion);
reasonable risk;
execution of an order (instruction).

All of the above actions are devoid of public danger, they represent acts of socially useful behavior, since the persons performing them, as a rule, are guided by justified motives, forced into risky situations (or creating them with their own hands) in order to achieve goals.

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Since the subject foresees the possibility (inevitability) of the occurrence of consequences that benefit the public, realizes the usefulness of his own actions, desires the occurrence of socially useful goals, then he commits a conscious, socially approved and morally justified act. The moral, psychological and socio-legal assessment of actions does not change from the fact that they are accompanied by causing harm, which is a necessary consequence of actions aimed at achieving significant socially useful results.

The criminality of acts of mental or physical coercion, execution of orders or commands is excluded. These acts are committed under external coercion (mental or physical), involuntarily and innocently. Actions performed under these circumstances by the legislator are considered as specific types of acts of extreme necessity.

Actions that are performed under circumstances in the form of an act that excludes crime are in all cases necessary and forced. A state of necessity or compulsion can be caused by external circumstances (a socially dangerous encroachment; a danger directly threatening legally protected interests; a mandatory and legal order or order for a person in their execution; physical coercion in which a person is not able to direct his actions (action or inaction), as well as internal reasons that determine the need to follow one’s moral duty in risky situations.

Finished works on a similar topic

Course work Circumstances excluding the criminality of an act under criminal law 460 ₽ Abstract Circumstances excluding the criminality of an act under criminal law 230 ₽ Examination Circumstances excluding the criminality of an act under criminal law 200 ₽

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If there are internal motives, the subject acts on his own initiative, causing forced harm to legally protected interests in order to achieve socially useful goals that cannot be achieved without causing harm. The content of actions (inaction) that are committed under the circumstances specified in the criminal law is based on professional duty or subjective right.

The legality of the circumstances excluding the criminality of the act is explained by the fact that they are acts that are aimed at the implementation of subjective rights, such as:

right to personal integrity;
right to health, life;
the right to personal property;
right to inviolability of home, etc.

Note 1

Every citizen has the right to defend his own and others’ rights and freedoms.

Urgent necessity

This is a situation in which measures are used to eliminate the danger to life, health, the rights of the defending citizen or third parties, society or the state. Moreover, this threat cannot be eliminated in other ways, and the person must not violate the limits of extreme necessity. An example could be a natural element (tornado, tsunami, fire), an animal, a source of increased danger (car), a physiological process (childbirth), human actions (pedestrians crossing the road in the wrong place).

The danger must be real and present.

Similar to necessary defense, the law also provides for the case of exceeding the limits of what is permitted. Also, a person will be held liable if the damage caused intentionally is equal or greater.

Defense or emergency: differences

These two concepts may superficially appear very similar by definition. However, there are serious differences between them:

a person in a state of extreme necessity can protect not only himself, but also other citizens;
different sources of danger (defense - a criminal attacks; extreme necessity - forces not related to human intent act);
in a state of defense, a person causes harm only to the attacker, and, if necessary, to third parties;
in the first case, greater harm is allowed, and in the second, it should be less;
when defending, the possibility of finding other ways is not considered; if absolutely necessary, harm can only be caused if there are no other ways.

Concept of necessary defense

Note 1
Necessary defense is the lawful protection of the rights and personality of the person defending, the interests and freedoms of the state and society protected by law from dangerous attacks by causing harm to the attacker.

Protection from an attack that is not associated with violence dangerous to the health and life of the defender (another person), with the threat of using this violence is lawful if there was no excess of the necessary defense, or any deliberate actions inconsistent with the danger and nature of the attack (Part 2 Code of Criminal Procedure).

Causing harm to an offender in a state of necessary defense is not a crime (Part 1 of Article 37), if this assault was associated with violence that poses a danger to society, to the life of the defender, or if there was an immediate, real threat of this violence.

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Features of the necessary defense defined in the Criminal Code:

the situation of necessary defense is clearly delineated as an action aimed at protecting the individual, the rights of the defender, any other persons, the interests of the state and society from an attack that is not associated with violence and actions that are dangerous to life or with the threat of such violence, when there is an option to exceed limits, as a circumstance mitigating punishment or responsibility, a situation of necessary defense, in the form of circumstances excluding the criminality of this act;
this is a lawful act that is aimed at protecting legally protected interests from socially dangerous encroachment;
protection from public encroachment occurs through causing harm to the encroacher, whose interests are in certain interests protected by law, which indicates the extraordinary nature of the actions of the defender, establishing the limits of permissible harm;
exceeding the necessary defense shows guilt, the social danger of the act, the validity of liability in criminal law, if it contains signs, properties of the crime.

Finished works on a similar topic

Course work Necessary defense as a circumstance excluding a criminal act 430 ₽ Abstract Necessary defense as a circumstance excluding a criminal act 280 ₽ Test work Necessary defense as a circumstance excluding a criminal act 230 ₽

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Necessary defense can be characterized as a socially useful and lawful action if it occurs in a state of necessary defense, is performed under circumstances indicating the conditions and grounds for protecting legally protected interests from socially dangerous encroachment, indicating the limits of this protection, which allow avoiding unnecessary harm to the encroacher, called conditions and grounds for the legality of necessary defense.

The state of necessary defense is a complex of signs that characterize both defense and encroachment, as well as conflict interaction (conflict between the encroacher and the defender in a defense situation).

Coercion: physical or mental

In fact, this basis involves paralyzing the will and consciousness of a person so that he commits a crime.

For example, physical injuries include severe bodily harm (torture), binding, handcuffs, etc. Batterings and minor bodily harm are usually not included in this category, but it is necessary to find out in each individual case whether these factors could lead to the loss of the individual’s will.

The law tells us practically nothing about mental effects. Scientists use hypnosis as an example. You can also imagine a situation where a bank teller is pointed at with a gun and forced to hand over money. This is also mental coercion.

The issue of liability in the event of pressure under which a person retained the ability to direct his actions is resolved according to the rules of extreme necessity.

The Criminal Code of the Russian Federation also includes psychological or physical impact in the category of circumstances mitigating punishment (for example, minor bodily injuries, intimidation, blackmail, etc.).

Other types of circumstances excluding the criminality of an act

In addition to necessary defense, detention of the person who committed the crime, and extreme necessity, these circumstances also include:

physical or mental coercion (Article 40 of the Criminal Code of the Russian Federation),
justified risk (Article 41 of the Criminal Code of the Russian Federation),
execution of an order or instruction (Article 42 of the Criminal Code of the Russian Federation).

Physical or mental coercion

In Part 1 of Art. 40 of the Criminal Code of the Russian Federation states that it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion if, as a result of such coercion, the person could not control his actions. Physical coercion means forceful influence on a person or deprivation of personal liberty in order to force him to submit to the will of another person. It can be expressed in the use of physical force (damage to health, blows, beatings, torture, poisoning, etc.), coercion can also be achieved by restricting a person’s freedom (keeping in a pit, locking in a room, etc.). Physical coercion excludes the criminality of an act if it is irresistible. The insurmountability of physical coercion is understood as such an impact on a person (on his health or freedom), which entails a complete loss of his free will, which allows him to be used as a tool or means to cause harm to interests protected by criminal law. A person is unable to resist such coercion.

As a result of irresistible physical coercion, a person is usually forced to remain inactive. For example, locking the switchman in a booth, as a result of which he is deprived of the ability to move the switches; tying up the guard so that he cannot prevent the theft of the property he protects, etc.

In some cases, through this coercion, the coercer gets the person to perform the actions he desires (for example, to force him to steal a vehicle).

An action or inaction committed under the influence of irresistible physical coercion is deprived of such a sign of a criminal act as a volitional character. In the criminal legal sense, the behavior of a person in this situation does not constitute an act as a sign of the objective side of the crime. Therefore, it is not subject to criminal liability.

Since there is so-called indirect harm, therefore, the one who forced him to commit a crime must bear criminal liability. This person is recognized as the perpetrator of the crime, and the person who actually committed it acts in this case as an instrument or means of committing the crime.

The use of hypnotic influence on another person is also equivalent to physical coercion. Actions committed in a state of hypnosis also exclude criminal liability for that person. In this case, the perpetrator of the crime is the person who used a hypnotized person to commit it.

Thus, irresistible physical coercion is one of the manifestations of force majeure.

It must be borne in mind that with this coercion, harm is caused to interests protected by criminal law, i.e. the object of a specific crime.

In accordance with Part 2 of Art. 40 of the Criminal Code of the Russian Federation, the issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the ability to direct his actions, is resolved according to the rules of extreme necessity (Article 39 of the Criminal Code of the Russian Federation). In this case, we are talking about surmountable impact. Such coercion means that a person retains free will (although the will may be significantly limited), and he is able to act at his own discretion, and not be an instrument of crime in the hands of the coercer.

Mental coercion is understood as informational influence on the human psyche in order to impose one’s will on the coerced person and force him to commit a crime. Its most typical type is the threat of harm to the legally protected interests of the individual. The threat must be specific and real, the person had reason to fear its implementation. Another type of mental coercion is blackmail.

As already indicated, harm caused under the influence of surmountable physical or mental coercion is assessed according to the rules of extreme necessity: if it is less than the harm that was caused or threatened to be caused to a person, then his criminal liability is excluded; if it is equal to or greater than the harm that was caused or threatened to cause to the person, then it is subject to criminal liability. The specified coercion is recognized as a mitigating circumstance (clause “e”, part 1, article 61 of the Criminal Code of the Russian Federation).

The legislator does not recognize mental compulsion as insurmountable. Meanwhile, some forms of mental coercion can lead to paralysis of the will, as a result of which a person causes harm to interests protected by criminal law (for example, while at gunpoint, a cashier gives out money at the request of a criminal). In this case, the liability of this person is also excluded.

Criminal law recognizes justified risk as a circumstance excluding the criminality of an act (Article 41 of the Criminal Code).

Justified risk

In Art. 41 of the Criminal Code of the Russian Federation states: “It is not a crime to cause harm to interests protected by criminal law with a justified risk to achieve a socially useful goal.”

Risk is nothing more than making a decision without the necessary information. Its formula is quite simple: the situation is uncertain, in other words, there is no proper information that adequately reflects the situation; there is a need to act, how to act is not completely clear. The greater the uncertainty, the greater the risk, and vice versa.

The risk is the possible harm to relationships protected by criminal law. But we must keep in mind that it is a by-product of risky actions and its occurrence is probabilistic. The inevitability of harm does not exclude the criminality of the act.

The areas of activity in which reasonable risk is possible are varied. Some types of professional activities are inherently risky: conducting scientific research, testing, experiments, operating transport, developing new drugs, rescue work in emergencies and natural disasters, etc. These include economic and commercial risk, which is associated with causing property damage damage.

In addition to professional activities, justifiable risk can occur in other areas of human life, in particular tourism, travel, sports, so-called extreme leisure, etc.

Based on the time of making a decision on actions in a state of risk, two types can be distinguished:

initially the situation was not risky and did not create a danger of causing harm to public relations protected by criminal law;
The situation was like this from the start.

According to the law, a risk can be justified if a socially useful goal could not be achieved by actions (inactions) not related to risk, and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law (Part 2 of Article 41 of the Criminal Code of the Russian Federation) . A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a public disaster (Part 3 of Article 41 of the Criminal Code of the Russian Federation). Thus, the mandatory conditions characterizing the institution in question are:

presence of a socially useful purpose;
the impossibility of achieving it without risk;
sufficiency of measures to prevent harm;
compliance with the prohibition of risks associated with the creation of a threat to the lives of many people, with the threat of an environmental disaster or public disaster.

A socially useful goal is the expected result of risky actions that is of interest to society, its individual members, the state, science, industry, technology, medicine, etc. It can be expressed in the creation of new types of equipment, technology, obtaining more effective drugs than existing, economic benefits, etc.

The specified goal should be quite specific and, in principle, achievable. An abstract goal and its insignificant probability of achievement indicate the adventurous nature of actions that entail criminal liability on a general basis.

The realization of a personal goal excludes the validity of the risk.

The impossibility of achieving a socially useful goal without risk means that the risk in the current situation was forced, since there were no other ways of achieving it that would guarantee a known positive result. The risk taker had no other options for behavior. If a socially useful goal could be achieved without risk, but nevertheless it was allowed, for causing harm to public relations under such circumstances, the criminal liability of a person is not excluded.

The sufficiency of the measures taken by a person to prevent harm presupposes that the person at risk, aware of the possibility of causing harm to social relations through his actions to realize a socially useful goal, did everything to ensure that harm was not caused. Consequently, justified risk excludes actions “for luck”, hope “at random”. The “sufficiency of measures” is determined not by their objective ability to prevent harm, but by their subjective perception by the person at risk. Consequently, the law deals with such measures that a specific person could take. The question of their sufficiency is decided in each specific case based on the scope of activity and the degree of risk.

The law does not allow a risk if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a public disaster (for example, the death of three or more people, irreparable damage to the environment, a violation of the protection of vital interests of society). Knowing means that a person foresaw their inevitability or real possibility.

Committing a crime in violation of the conditions of justified risk is recognized as a circumstance mitigating punishment (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation).

Justified risk

This term refers to causing harm to the public interest in order to achieve some useful purpose.

This risk will be justified only when the result could not have been achieved without it, and the person has taken all measures to prevent unpleasant results. If it was initially known that the consequences could be an environmental disaster, a disaster, or the lives of many people would be in danger, then such a risk is unjustified and entails liability.

Justified risk as a circumstance excluding the criminality of an act is rarely encountered in judicial practice, but scientific tests, launching mechanisms, and the invention of technologies can be cited as examples. The analogy can also be seen on television screens, in the well-known comedy “Ivan Vasilyevich Changes His Profession,” where Shurik created a time machine and put it to work. The consequence was the movement of the characters in time, Dr. Shpak suffered property damage through theft, the wife of the newly-crowned king lost her husband, who with Miloslavsky almost died during the reign of Ivan the Terrible at the hands of his guards, in addition, no one has canceled the psychological trauma. As the main character said: “perhaps I’m standing on the threshold of a great discovery...”, indeed, such an invention would help many change something in the past, correct fatal mistakes, and save someone’s life. There was a risk, and it can even be considered justified, especially since Shurik took all measures to restore the situation.

But let's move on from the joke to the main serious topic.

A prerequisite for a justified risk is also the achievement of a goal that is necessary not only for the tester himself, but for thousands of people, i.e., socially useful. For example, creating a new medicine, saving a person, obtaining a completely different economic result, etc.

Causing harm when apprehending a criminal

The very name of this circumstance already contains a socially useful goal - solving a crime and suppressing other illegal actions.

The basis for applying these measures is the following:

the person has committed a crime;
hiding from the authorities.

The stage of the proceedings in this criminal case does not matter; it can be at the stage of search, investigation, trial, execution of a sentence, etc.

In this case, the harm is considered justified if the person could not be detained and delivered to the authorities by other means, and the boundaries of reasonable measures were not violated.

In proportionality, it is also worth taking into account the cruelty of the criminal, his weaponry, mental state, physical fitness, and other factors.

The purpose of these actions should be to bring the person to the appropriate authorities, and not personal revenge. In the latter case, liability will arise on a general basis.

Causing harm when detaining a person who has committed a crime

In accordance with Part 1 of Art. 38 of the Criminal Code of the Russian Federation, it is not a crime to cause harm to a person who has committed a crime when he is detained in order to bring him to the authorities and suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded .

Like necessary defense, the legality of causing harm when detaining a person who has committed a crime is determined by two groups of conditions:

a) related to the crime committed:

existence of a crime;
evasion of a person from arrest.

More details

Conditions of legality relating to the crime committed

Various circumstances may indicate that the detainee has committed a crime:

the person is caught in the act of committing it;
there are traces of a crime on him and his clothes;
victims or eyewitnesses pointed to this person as having committed a crime, etc.

Evasion of a person from arrest means either an attempt to hide, or his categorical refusal to go to the appropriate authority. If the detainee actively resists arrest, actions to detain the person who committed the crime develop into necessary defense.

b) related to detention:

harm is caused only to the person who committed the crime;
forced nature and purpose of causing harm;
not exceeding the measures necessary for detention.

More details

Conditions of legality relating to the detention of a person

The first condition (harm is caused only to the person who committed the crime) means that it is unacceptable to cause harm to a person who has not committed the crime, i.e.
to third parties. The indication in the law of the commission of a crime should be understood broadly - both the commission of a crime and the commission of a socially dangerous act by a person who is not recognized as the subject of the crime, if the detainee was not aware of this. In this case, bringing a person to justice for violating the conditions of the legality of detention would mean objective imputation, unacceptable in Russian criminal law. The right to cause harm during arrest arises from the moment the crime is committed (including unfinished crime) and terminates from the moment the statute of limitations expires.

Causing harm to a person is forced, i.e. It was impossible to detain the criminal by other measures not related to causing harm. Damage can be both property and physical.

The purpose of detention is specified in the law: to bring him to the authorities and suppress the possibility of him committing new crimes. It excludes causing death to the detainee. The legality of causing such harm must be determined within the framework of the institution of extreme necessity.

Measures of detention must correspond to the nature and degree of danger of the crime and the circumstances of the detention.

Exceeding the measures necessary to detain a person who has committed a crime is recognized as their obvious discrepancy with the nature and degree of public danger of the crime committed by the detainee and the circumstances of the detention, when the person is unnecessarily caused clearly excessive harm not caused by the situation (Part 2 of Article 38 of the Criminal Code of the Russian Federation) . Thus, the law connects excess detention measures with two circumstances:

the nature and degree of public danger of the crime committed;
the situation of detention.

Causing excessive harm entails criminal liability only if there is an intentional form of guilt. A special part of the Criminal Code of the Russian Federation contains two crimes committed when the measures necessary to apprehend the criminal were exceeded:

murder (part 2 of article 108 of the Criminal Code of the Russian Federation);
infliction of grievous or moderate harm to health by exceeding the measures necessary to detain the person who committed the crime (Part 2 of Article 114 of the Criminal Code of the Russian Federation).

According to paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, these crimes are considered committed under mitigating circumstances.

Intentional infliction of other harm to health, as well as infliction of physical harm through negligence during the detention of a person does not entail criminal liability.

Execution of orders/instructions

Actions of a person to cause harm to the interests protected by the Criminal Code of the Russian Federation, for whom the specified documents are mandatory, are not considered a crime.

The subjects in the case under consideration will always be the boss and the subordinate.

Execution of an order as a circumstance excluding the criminality of an act came to our legal system from the activities of international criminal and emergency courts, and is often found in the military sphere, where “the order is not discussed.”

The conditions for legality in this situation are:

the obligatory nature of the command, i.e. the person is subordinate;
they must come from an authorized entity;
the executor should not know in advance about the illegality of the demands;
it should not go beyond what is required.

In this case, the manager will bear criminal liability. If a subordinate performed a knowingly unlawful act, then he is also punished on a general basis.

Failure to comply with such orders and/or instructions does not entail liability under the Criminal Code of the Russian Federation.

Circumstances excluding the criminality of the act

Circumstances excluding the criminality of an act - acts that formally contain signs of the objective side of a crime provided for by criminal law, do not entail criminal liability.

Only acts expressly provided for as such by criminal law can be recognized as excluding criminal acts. The Criminal Code of the Russian Federation provides for six such circumstances: necessary defense, causing harm during the detention of a person who has committed a crime, extreme necessity, physical or mental coercion, reasonable risk, execution of an order or instruction.

Necessary defense is the lawful protection of the personality and rights of the defender and other persons, as well as the interests of society and the state protected by law from a socially dangerous attack by causing harm to the attacker. The main distinguishing feature of necessary defense, separating it from other circumstances that exclude the criminality of the act, is causing harm to the offender. It is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons whose interests of society or the state are protected by law from a socially dangerous attack. Defense is only possible against illegal actions committed by another person. The encroachment must contain objective signs of a crime; defense against other offenses is impossible. If the attack is carried out by a group of people, then harm can be caused to any member of the group, regardless of how active his behavior was. It is impossible to provide necessary defense against lawful actions, which include causing harm in situations where the criminality of the act is excluded: in case of necessary defense, detention of the person who committed the crime, or extreme necessity. In accordance with Part 1 of Art. 37 of the Criminal Code of the Russian Federation, defense is lawful in any case if the encroachment was associated with violence dangerous to the life of the defender or another person, or with an immediate threat of such violence. The existence of such an attack may be evidenced, in particular, by: infliction of harm to health that creates a real threat to the life of the defender or another person (for example, injuries to vital organs); the use of a method of assault that creates a real threat to the life of the defender or another person (use of weapons or objects used as weapons, strangulation, arson, etc.). An immediate threat of violence that is dangerous to the life of the defender or another person can be expressed, in particular, in statements about the intention to immediately cause death or harm to health to the defender or another person, dangerous to life, demonstrations to the attacker of weapons or objects used as weapons, explosive devices if, taking into account the specific situation, there were grounds to fear that this threat would be carried out.

Causing harm when detaining a person who has committed a crime is a circumstance that excludes the criminality of an act, in which it is permissible to cause harm to a person who has committed a completed criminal act and is trying to avoid responsibility for it, in order to detain him for transfer to law enforcement agencies and to prevent this person from committing new crimes . This circumstance differs from necessary defense in that the harm is caused at the moment when the offense is no longer present, when the offender has already completed the actions aimed at causing criminal harm. Art. 38 of the Criminal Code of the Russian Federation establishes the conditions for recognizing the detention of a criminal as lawful. It is not a crime to cause harm to a person who has committed a crime when he is detained to be brought to the authorities and to suppress the possibility of him committing new crimes, if it was not possible to detain such a person by other means and the measures necessary for this were not exceeded. These goals are alternative: it is permissible to detain a person in the absence of an immediate danger of the detainee committing a socially dangerous attack. In this case, the detention is carried out with the aim of bringing him to the authorities and thereby stopping the possibility of him committing new crimes. You can detain a person who has committed an act that, based on its objective (external) characteristics, is perceived as a crime. Detention may be based on a reasonable belief that a particular person has committed a crime; It is not necessary that any procedural document be issued in relation to this person (a decision to initiate a criminal case, a decision to charge as an accused, a sentence, etc.). It is permissible to detain an already convicted person who is trying to avoid responsibility. It is prohibited to cause harm to a person who has committed not a crime, but another offense, administrative or civil. Detention can be carried out by both specially authorized persons (law enforcement officers) and all other citizens who were eyewitnesses to the act, or for some other reason can claim with sufficient confidence that they are dealing with a criminal.

Extreme necessity is one of the circumstances that excludes the criminality of an act in cases where a person, in order to prevent damage to his personal interests, the interests of other persons, society and the state, is forced to cause harm to other protected interests. The difference between extreme necessity and necessary defense and similar institutions of other branches of law is that harm is caused not to the person who created the danger of harm, but to third parties. In view of this, the doctrine of “lesser evil” is applied: the harm caused must be less than the harm prevented. Essentially, extreme necessity is a situation where there is a conflict between two legally protected interests, and one of these interests can only be protected by violating the other. The basis for a person’s actions performed in a state of extreme necessity is the presence of a threat of harm to his personal interests or the interests of third parties. The nature of such a threat can be very different. The threat must be present, that is, by the time actions aimed at causing harm are committed, the danger that these actions are designed to prevent must already have actually arisen. Causing harm to eliminate a possible future danger does not exclude liability. There can be no talk of extreme necessity in cases where the development of the danger has already gone so far that the harm cannot be prevented or compensated. The general condition for the legality of causing harm is considered to be a smaller amount of harm caused compared to the amount prevented. When comparing the size, both the quantitative characteristics of the damage (for example, the cost of destroyed property) and the qualitative characteristics are taken into account: thus, property damage, as a rule, is considered less significant than physical harm caused to human health.

Physical or mental coercion is one of the circumstances that excludes the criminality of an act. Physical or mental coercion is the unlawful use of violence (physical or mental) against a person, which is carried out with the aim of causing that person to commit a socially dangerous act against his will. Liability in such a situation is excluded due to the fact that the actions are committed by the person against his own will and, therefore, innocently. It is noted that in fact, in this case, the coerced person acts as a “living instrument” of the crime, and the subject of the crime will be the coercer and will bear responsibility. Physical or mental coercion that is applied to a person immediately at the time of committing a criminal act or shortly before it (so that there is still a danger of repeated violent influence in the event of refusal to perform the required actions) can be considered as a circumstance excluding liability. In reality, physical and mental coercion are rarely carried out separately from each other: as a rule, any physical coercion contains elements of mental influence, and mental coercion is accompanied by the use of physical violence. Physical coercion is a violent influence on the human body, which amounts to causing pain or harm to health, committed with the aim of forcing the coerced person to perform a certain action. Physical coercion can be reduced to violating the anatomical integrity of the human body (beating, using weapons, etc.), influencing other physiological processes (using potent medications, narcotic and psychotropic drugs, deprivation of food, sleep, etc.) and restricting physical freedom of the coerced (holding, tying, etc.). Mental coercion is an informational influence on a person’s consciousness, which, as a rule, represents a threat of physical violence against the coerced person or his loved ones. The rule on physical or mental coercion is contained in Art. 40 of the Criminal Code of the Russian Federation. Causing harm to interests protected by criminal law as a result of irresistible physical coercion is recognized as non-criminal. If physical coercion was surmountable, as well as in all cases of mental coercion, the issue of liability is resolved according to the rules of extreme necessity.

Justified risk is one of the circumstances excluding the criminality of an act. Justified risk is the lawful behavior (action or inaction) of a person aimed at achieving a socially useful goal, in the implementation of which there is a likelihood of adverse consequences, including causing harm to interests and benefits protected by criminal law. As a rule, in cases where the life and health of a specific person (for example, a patient or a test pilot) is at risk, in order to recognize the risk as justified, it is necessary to inform this person about the possibility of causing such consequences and obtain his voluntary consent to perform risky actions. A person always commits risky actions intentionally. The current Criminal Code of the Russian Federation contains a rule on justified risk in Art. 41. The risk is considered justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster.

Execution of an order or instruction is one of the circumstances that excludes the criminality of an act in criminal law. A person who has carried out socially dangerous actions as part of the execution of an order or instruction that is obligatory for him may be released from liability. The conditions for exemption from liability for the execution of an order are: The requirement to perform certain actions must come from the competent authority or person vested with the appropriate powers. It does not have to be in writing; its official name can also be different (order, instruction, instruction, etc.). The person must be obliged to execute the order or instruction, and bear responsibility (criminal, administrative or disciplinary) for its failure to comply. The order should not be obviously illegal for the executor: it should not clearly contradict regulatory legal acts, and primarily criminal law. Giving a knowingly illegal order can be considered as incitement to a crime (attempted incitement to a crime if the order was not executed)[7], or as indirect infliction (if the executor does not realize the illegality of the order)[8]. The executor is responsible for the execution of a knowingly illegal order along with the person who gave it. A person who fails to execute a knowingly illegal order cannot be held accountable for failure to execute it.

Circumstances excluding the criminality of an act - acts that formally contain signs of the objective side of a crime provided for by criminal law, do not entail criminal liability.

Problems of law enforcement practice

Since the above circumstances, which exclude the criminality of an act, are not considered illegal socially dangerous acts in the Criminal Code of the Russian Federation, then, accordingly, a criminal case should not be initiated, there is simply no element. However, in practice, often, in order to make sure of this, the authorized bodies open a case and investigate it (conduct interrogations, examinations, experiments, etc.). It can even reach the court stage, where, perhaps, everything will unfold, and the charges against the person will be dropped due to identified circumstances, if this has not been done previously.

A person’s actions are qualified at the stage of investigation, if a case has been initiated, then the prosecutor checks, supports the prosecution on behalf of the state, after which the court must give its assessment. It is at this stage that the servants of Themis take on a decisive role in the life of the defendant, where the qualifications of the offense can be radically changed.

At the same time, law enforcement practice in these circumstances is very ambiguous. There are still shortcomings and errors associated with incorrect interpretation of articles of the Criminal Code of the Russian Federation, non-application of the law that is subject to application, or basing their opinion on the wrong rule of law. This, of course, is a big problem, since innocent people may be punished, or, conversely, criminals will escape punishment. That is why the concept and meaning of circumstances excluding the criminality of an act must be known by heart by authorized bodies in order to be able to correctly see and apply them. It seems that this problem must be solved through regular monitoring of the proceedings of cases from this category, identifying errors, gaps, and through the adoption by the Supreme Court of the Russian Federation of relevant generalizing decisions.