Competition of criminal law norms in sentencing: concept and types

On what principle does competition of legal norms work?
The very concept of competition denotes a kind of competition between something or someone. And in the end, the side that has more facts and advantages wins. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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Content

The competition of criminal law norms are precedents in which a socially aggressive crime cannot be considered with the help of one article.

Typically, such debates arise when an atrocity can be described by two or more articles of the Criminal Code of the Russian Federation.

There are 2 primary concepts that need to be distinguished from each other: competition and collision.

The competition of legal norms in criminal law shows an action committed by a criminal, which under any circumstances should not go unpunished. The only question is “to which point does the crime relate more?”

The conflict is manifested in the duality of the offense, and if under previous circumstances more than one of the legal norms compete with each other, then here there is a contrast in which such behavior is permissible in one legal norm, but not in another.

competition itself is responsible for resolving controversial issues in criminal proceedings;
competition is qualified on issues related to the same crime with varying degrees of punishment.

There are no regulations in the Criminal Code of the Russian Federation that would mark the same offense in different ways. In any case, even the smallest detail is different, for which in one case the offender can go to prison, and in another case receive a fine. One way or another, the case is examined from all sides to reach a more correct verdict.

Positional collisions

The division of competition into intra-industry, inter-industry and inter-legal competition depends on the location and source of conflict of laws rules. Intra-industry conflicts arise between articles related to the same branch of law. Lawyers have provided for an internal division of this concept into types of competition of norms in criminal law:

conflict between the articles included in the General Part;
conflict between the articles included in the Special Part;
a conflict between articles, one of which is included in the General and the other in the Special part of the Criminal Code of the Russian Federation.

Intersectoral competition can be described as legal relations that arise between legal regulations of different legal branches (for example, criminal, penal-executive, criminal procedural, administrative, constitutional, and so on).

Interindustry collisions are divided into the following subtypes:

conflict between constitutional and sectoral;
conflict of material and procedural (that is, articles of criminal procedural and criminal substantive law);
conflict of regulatory and protective (for example, conflict of civil and criminal or tax law);
conflict of articles of a protective nature that relate to different legal branches (for example, competition between administrative and criminal law norms).

Interlegal competition appears in the relations of legal norms that belong to different systems of law. They are divided into two subspecies:

conflicts of articles of domestic and international law in the criminal sphere;
conflicts of articles of criminal national law and norms of foreign criminal law.

Legal provisions that relate to competition regulations

In order to correctly understand the meaning of the concept of competition in the context of criminal law, one should resort to practice (life situations). In general, regulations regarding competition are extremely rarely practiced in court proceedings, however, if such a precedent exists, then punishing the perpetrator for a criminal act becomes somewhat more difficult.

For example, in other countries, such as Spain, the Criminal Code considers an action that falls under several legislative acts, then the case should be reconsidered, along with certain rules that state that an additional norm takes precedence over the main one, and a special norm can be used directly in in case there is no common one.

The general (main) norm indicates a more dangerous act, and at the same time the special (additional) norm shows the circumstances in which the act provides for a reduced sentence.

According to Article 105, intentional infliction of bodily harm resulting in the possible death of an innocent person. And based on Article 107, unintentional infliction of bodily injury that resulted in death, committed in a state of emotional instability (affect).

A state of emotional instability is a condition caused by some kind of stress or fear. For example, a mother saw that her child was being beaten and, in order to protect her child, killed the culprit by hitting him on the head with a vase.
Intentionally inflicting bodily harm resulting in possible death is an act committed according to a preliminary plan.

So, if there is enough evidence and proof, the defendant can receive a reduced court decision, or a more severe punishment for an act committed in his right mind.

Simply put, there is a competition of norms when assigning punishment.

Other competition norms

In 2022, the issue of competition between regulations issued at different times remains relevant.

According to the rules, a criminal law norm issued at a later date is subject to application, except in cases where the old norms eliminate punishment, mitigate criminal liability or otherwise improve the position of the accused, based on the provisions of Art. 10 of the Criminal Code of the Russian Federation.

The competition between foreign and national legislation is considered on the basis of agreements on mutual legal assistance. If there is a bilateral agreement, priority must be given to the norms of foreign legislation.

In competition between the norms of international law and the norms of national legislation, preference is given to the norms of international law, in accordance with Part 2 of Art. 1 of the Criminal Code of the Russian Federation.

Only criminal law norms aimed at solving the same issue can compete with each other. They also differ in the time of adoption of the law, in whether they belong to international or national legislation.

The difference between them also exists in the presence or absence of any additional features, for example: Art. 105, 106, 107, 108, 277, 295, 317 of the Criminal Code of the Russian Federation.

Since competing norms help regulate the same issues, a certain relationship can be seen between them.

The theory of criminal law states that if by the time these norms are applied, one of them is abolished, then the crime should be classified according to the remaining norm. Experts only partially agree with this position.

For example, there is one responsibility for the theft of someone else’s property and another responsibility for the theft of especially valuable items, but they are also someone else’s property.

Upon repeal of Art. 164 of the Criminal Code of the Russian Federation, the acts of an attacker who stole especially valuable things can be classified under articles that provide punishment for the theft of someone else's property.

If an ordinary thing belonging to someone else is stolen, then the article for theft of someone else’s property will be canceled . If there is an article for the theft of especially valuable items, then the crime will not be classified under Art. 164 of the Criminal Code of the Russian Federation, since an ordinary thing does not belong to objects of special value, and the actions of the criminal will not constitute a crime. As a result, if a special norm is repealed, the general norm applies, but not vice versa.

Competition of rules differs from a set of crimes, in which more than two criminal law rules may be applied. The most difficult thing is to distinguish competition from an ideal aggregate when one crime is committed.

In competition, one or more illegal results may be caused, but the act is covered simultaneously by each of the competing rules.

With an ideal combination, more than two socially dangerous consequences are achieved and liability is provided in accordance with various criminal law norms.

Types of competition

Competition in criminal law has 3 minor types when qualifying crimes.

temporal (in other words, involved in a certain time frame);
spatial (in other words, fundamental on the territorial aspect);
hierarchical (based on legal force).

Temporal competition demonstrates the elimination of the same problem by more than one act of the Criminal Code, which was established during the investigation at different hourly stages. The main rule of this type is the annulment of competition (Article 10 of the Criminal Code of the Russian Federation).

Spatial competition also represents the elimination of one problem, but from the point of view of territorial significance. That is, an offense started in one country and completed in another. To eliminate this type of competition, it is allowed to take into account the very place where the violation began (Article 11 of the Criminal Code of the Russian Federation).

Hierarchical competition is called competition that is characterized by a variety of legal powers. In Russia, this type of competition is extremely rare, so almost no one attaches special importance to this type.

It is quite difficult to relate life situations to these species, but there are precedents for spatial competition.

A criminal named B. escapes from prison in Russia and immediately flees to China. Russia has an agreement with China on the deportation of criminals to their home country. After deportation to Russia, citizen B. appears in court and receives 8 years of imprisonment in a strict regime. But before the decision was made to return the criminal to his homeland, China intended to try him according to its laws. Due to the fact that Chinese judicial practice in this case turned out to be more loyal, the country was forced to send the defendant home.

repeated competition;
competition between the part and the whole;
competition of the general and special part of the whole with the exclusive norm;
competition between general and special norms.

For a more extensive understanding, it is necessary to analyze each type step by step, citing real life situations.

Competition between general and special norms

The main type is competition between general and special norms. Most often, this type of competition leans towards a special norm.

According to Part 3 of Art. 17 of the Criminal Code of the Russian Federation, if a crime provides for two norms of criminal law at once: special and general, then the person’s actions will be determined only according to the special norm.

A special norm is one that specifies the properties of a general crime applied to a specific object of an attempt: for example, the elements of deliberate harm to the health of a police officer (Article 317) are considered as special in relation to actions related to murder (Article 105); along with this, the specifics are established based on the characteristics of the victim and the goals of the accused.

There are circumstances where more than one of the special rules competes with each other. For example, Part 2 and Part 4 of Art. 158, and the part that determines the more severe punishment takes precedence. In opposite circumstances, it may be that several privileged members are in almost the same punishment category.

For example, mutilation resulting in death in an unstable mental state and mutilation resulting in death due to self-defense. Under such circumstances, the act is positioned as a qualification of crime in the competition of criminal legal norms and is assessed unquestioningly according to mitigating conditions.

the task of this type is to turn to literature that will more accurately describe the crime;
the state of instability is determined by testing to assess the emotional state.

At the moments at which the qualifying and privileged compositions come into force, the one that has more advantages is resorted to. For example, if there was infliction of fatal injuries in a state of emotional instability, the defendant will be responsible for the action under Article 107 of the Criminal Code of the Russian Federation.

Competition of norms: concept, types and methods of resolution.

The legal framework for resolving this situation is contained in Part 3 of Art. 17 of the Criminal Code of the Russian Federation, which states that “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.” The legal basis of the stated legislative prescription is the classic rule of interpretation of laws: a special law cancels the effect of a general one (lex specialis derogat legi general!).

That is, if the qualifying act has the characteristics of the composition specified in the special norm, the special rather than the general norm is subject to application.

To simplify the criminal legal assessment of established acts, it is necessary to consider the various manifestations of qualifications in the competition of general and special from the point of view of the manifestation of the relationships between several: 1) articles; 2) parts of one article.

The competition of several articles of the Special Part of the criminal legislation is manifested primarily through the ratio of elements of various crimes.

Thus, in paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 5, 2002 No. 14 “On judicial practice in cases of violation of fire safety rules, destruction or damage to property by arson or as a result of careless handling of fire” it is explained that “if The cause of the fire was a violation of safety rules at nuclear power facilities, at explosive sites, during mining, construction or other work, violation of the rules for accounting, storage, transportation and use of explosives, pyrotechnic products, etc., the act is covered by special crimes (Articles 215-218 of the Criminal Code of the Russian Federation, etc.) and additional post qualifications. 219 of the Criminal Code of the Russian Federation does not require”3. The latter follows from the fact that in Art. 219 of the Criminal Code of the Russian Federation establishes liability for any violation of fire safety rules (general norm).

The rule for overcoming competition in this situation is the competition of articles of the Criminal Code of the Russian Federation: if the established act corresponds to the elements of a crime provided for by two articles of the criminal legislation, it is qualified under an article that contains elements reflecting one of the cases (i.e. a special case) of committing a crime, any of which is included in the composition from another article.

A type of competition between general and special norms is competition between norms providing for basic, qualified or privileged crimes.

Qualified and privileged compositions have all the features of the main one and, in addition, have special distinctive features that aggravate or mitigate liability at the level of criminal legal assessment. If there are only aggravating circumstances in the act, the act constitutes a qualified offense. If it presents only mitigating circumstances, then the composition will be preferential.

For example, when committing murder, there are several related offenses: murder without aggravating and mitigating circumstances (Part 1 of Article 105 of the Criminal Code) - a simple offense; murder under aggravating circumstances (part 2 of article 105 of the Criminal Code) - qualified personnel; murder committed in a state of passion (Article 107 of the Criminal Code) is a privileged offense.

The issue of qualification of an act is quite simply resolved in the competition of articles of the criminal law with the main and privileged elements of a crime and with the main and qualified elements of a crime.

Thus, in paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 “On judicial practice in murder cases” it is explained that “Part 1 of Art. 105 of the Criminal Code of the Russian Federation qualifies murder committed without ... mitigating circumstances provided for in Art. 106,107 and 108 of the Criminal Code of the Russian Federation...” That is, any case of murder is reflected in Part 1 of Art. 105 of the Criminal Code of the Russian Federation, and in Art. 106 of the Criminal Code of the Russian Federation - a special case - only by the mother of a newborn child, in Art. 107 of the Criminal Code of the Russian Federation - only in a state of passion, in Art. 108 of the Criminal Code of the Russian Federation - only when the limits of necessary defense or measures necessary to detain the person who committed the crime are exceeded.

Rules for overcoming competition in a given situation of competition of articles of the Criminal Code of the Russian Federation; if the established act corresponds to the main and privileged elements of the crime, it is qualified under the article providing for the privileged elements;

if the established act corresponds to the main and qualified elements of the crime, it is qualified under the article providing for the qualified elements.

At the same time, there are compositions with several qualified compositions enshrined in different parts of one article of the Criminal Code of the Russian Federation.

For example, in Part 2 of Art. 264 of the Criminal Code of the Russian Federation (qualified personnel) provides for violation of traffic rules and operation of vehicles, resulting in the death of a person through negligence, and in Part 3 of Art. 264 of the Criminal Code of the Russian Federation - negligently resulting in the death of two or more persons (especially qualified personnel).

In this situation of competition between parts of one article of the Criminal Code of the Russian Federation: if the established act corresponds to several qualified elements of a crime, it is qualified under that part of the article that provides for a particularly qualified element (in the verdict, however, when qualifying the act under the most serious part of the article, it is necessary to list all qualifying features deed).

Cases cannot be excluded when simple, qualified and privileged compositions are placed in one article. Usually in these cases it is indicated to which composition, simple or qualified, the privileged norm applies. If it applies to both, then, if there are appropriate grounds, the preferential composition will always apply.

If the mitigating norm is addressed to a simple composition, then if the act contains both mitigating and aggravating features, a norm with an aggravating - qualified composition should be applied.

In addition to the articles of the Special Part of the Criminal Legislation, which provide for completed crimes, competition between the part and the whole can take place between the articles providing for unfinished and completed crimes. It should be noted that a number of authors talk about the absorption of compounds, denying competition between the part and the whole in this case.”

At the same time, the special rule for overcoming competition between articles providing for unfinished and completed crimes is formulated differently by different authors. In some cases, it is seen that “when competing norms with completed and unfinished criminal activity, containing signs of different elements of crimes, preference should be given to the norm that is more complete in the completed crime”6. In other cases, it is believed that “the rule on an unfinished criminal attack may be more complete”9.

Judicial practice with this type of competition between the part and the whole is found mainly in cases of crimes against property and person.

For example, if, when committing theft, the intent of the perpetrator was aimed at taking possession of property in a significant, large or especially large amount and it was not carried out due to circumstances beyond the control of the perpetrator, the act should be qualified as an attempted theft in a significant, large or especially large amount, regardless of the amount stolen.

At the same time, there is another practice that seems to ignore the type of competition in question. The problem is that in these cases, preparation for a crime entails a less severe punishment than the completed crime. In these conditions, practice follows the path of qualification based on a set of crimes.

Taking into account these exceptions, the rule for overcoming the competition of articles reflecting an unfinished and completed crime is as follows: if the established act corresponds to the elements of an unfinished and completed crime, it is qualified under an article that provides for a more serious crime.

Competition between the part and the whole arises in cases where one act is simultaneously subject to several norms, one of which covers the act as a whole, and the other only a separate part of it. This competition arises when a single simple and a single complex compound crime collide, when one crime (simple) is, according to the law, a mandatory or qualified feature of another (compound) crime. An example of competition between the part and the whole is the compound crime of robbery. Robbery is an attack for the purpose of stealing someone else's property, committed with the use of violence dangerous to life and health, or with the threat of such violence. Violence dangerous to life and health means causing the victim death, serious harm to health, moderate harm to health and minor harm to health with short-term health impairment or minor loss of ability to work. Meanwhile, this kind of violence forms independent elements of crime under Art. 105, 111, 112, 115 of the Criminal Code of the Russian Federation. If, in the process of committing a robbery, the perpetrator causes harm to the health of the victim, competition arises between the rules on robbery and the rules on crimes against the person. This competition must be resolved in favor of the general norm, that is, robbery, for it is precisely this that most fully covers everything that has been done.

Thus, when there is competition between the part and the whole, preference should be given to the whole. Judicial practice has developed one exception to this general rule. If a part constitutes a more serious crime than the whole, the offense must be classified as a totality of crimes.

4.
Crimes against the person: general characteristics .
In Art. 2 of the Constitution of the Russian Federation proclaims that a person, his rights and freedoms are the highest value. Chapter 2 of the Constitution guarantees the right of every person to life, protection of personal dignity, freedom and personal integrity, as well as inviolability of private life, personal and family secrets, protection of honor and good name (Articles 20-23). Protecting individuals from criminal attacks is the most important task of criminal law. The priority of this task determines, in particular, the place that crimes against the person occupy in the Special Part of the Criminal Code of the Russian Federation. A special part of the Criminal Code opens in Section. VII “Crimes against the person”, which consists of five chapters (16-20), providing for liability for criminal attacks on certain benefits and interests of a person.

Crimes against the person are socially dangerous acts provided for by criminal law and directly encroaching on the safety of life, health, freedom, honor and dignity, sexual integrity, constitutional rights and freedoms of man and citizen, the interests of family and minors.

The generic object of such crimes is social relations that ensure the safety of the individual. This generic object includes a number of specific objects , with

taking into account which all crimes against the person can
be classified as follows:
1) crimes against life and health - Ch. 16 of the Criminal Code (Articles 105-125);

2) crimes against freedom, honor and dignity of the individual - Ch. 17 Criminal Code (Articles 126-130);

3) crimes against sexual integrity and sexual freedom of the individual - Ch. 18 Criminal Code (Articles 131-135);

4) crimes against the constitutional rights and freedoms of man and citizen - Ch. 19 Criminal Code (Articles 136-149);

5) crimes against family and minors - Ch. 20 of the Criminal Code (Articles 150-157).

Based on the characteristics of the immediate object of the crime, certain subgroups of crimes related to their nature can be identified within some of these groups. First of all, this applies to crimes against life and health,

which are divided in the Criminal Code of the Russian Federation into: a) crimes against life (Articles 105-110);
b) crimes against health (Articles 111-118, 121, 122); c) crimes that endanger life and health (Articles 119, 120, 123-125). Crimes against freedom, honor and dignity of the individual include
two subgroups of crimes: a) against personal freedom (Articles 126-128);
b) against honor and dignity (vv. 129-130). In crimes against constitutional human rights and freedoms,
crimes can be distinguished: a) against political rights and freedoms (Articles 141-142, 149); b) against social rights and freedoms (Articles 136, 144-147); c) against personal rights and freedoms (Articles 137-140, 148). The crimes specified in ch. 20 of the Criminal Code are divided into two groups: a) crimes against minors (Articles 150-152, 156); b) crimes against the family (Articles 153-155, 157).

5.
Crimes against life and health: general characteristics .
The Criminal Code of the Russian Federation classifies various types of murder as crimes against life (Articles 105-108), as well as causing death by negligence (Article 109) and incitement to suicide (Article 110).

These crimes are placed in first place based on the fact that they deal with the protection of the most important natural human right - the right to life. The human right to life is established by various international acts, for example, the International Covenant of December 16, 1966 “On Civil and Political Rights”[1], the Convention of November 4, 1950 “On the Protection of Human Rights and Fundamental Freedoms”[2], enshrined in Article 20 of the Constitution of the Russian Federation.

Placing crimes against life in first place also speaks about the value of the life of each person for the state. By comparison, Soviet criminal codes placed first place “revolutionary achievements” and “national economy.”

All crimes against life are united by the fact that the object of each of them is human life.

Life as an object of crime is not subject to qualitative or quantitative assessment. Equal protection of all people from criminal attacks on their lives is the most important principle of criminal law. It does not matter the age, health status of the victim, his “social significance,” race, nationality, presence or absence of citizenship, etc.

The criminal legislation of the Russian Federation does not allow the deprivation of life of a hopelessly ill person, even with his consent or request (euthanasia). It is the equivalence of the object that explains why causing the death of a person mistakenly taken for another is not considered an “error in the object” and does not affect the qualification of the act as a completed murder. Increased responsibility for the murder of certain categories of persons in special norms is not associated with the increased value of the life of the victim, but with the presence at the same time of another object of assault or additional consequences that aggravate the guilt.

Human life is understood in the following aspects:

a) biological aspect - human life is a way of existence of protein bodies, which in essence consists of constant self-renewal, the components of these bodies and the performance of important functions of the body;

b) psychological aspect - human life is a combination of such elements as mental processes, mental state, mental properties in general that make up the human psyche, as well as mental phenomena and psychological factors. Definition of psychological concepts accompanying murder: violence, aggression, cruelty;

c) social aspect - human life is the interaction of society and the individual, the formation of specific social attitudes taking into account social determinants when committing a murder;

d) the criminal legal aspect considers the life of another person as an object of criminal legal protection.

Murder.

Murder means intentionally causing the death of another person.

The direct object of murder is human life, so it is important to determine the moment of the beginning of life and the moment of its end.

The initial moment of life is considered to be the moment when the complete expulsion or extraction of the product of conception from the pregnant woman’s body is stated, i.e. when the fetus has separated from the mother’s body, with the exception of the umbilical cord, which has not been cut, and the fetus has breathing or heartbeat, pulsation of the umbilical cord or voluntary movement muscles.

The moment of death is associated with the statement of irreversible death of the entire brain.

Objective side of the murder:

1) an act, which can be either in the form of action or inaction, aimed at causing the death of another person;

2) as a result of this act, socially dangerous consequences must occur in the form of the death of another person;

3) there must be a necessary causal connection between the act and the consequences.

Material composition - the murder is considered completed from the moment of the death of the victim. It does not matter when death occurred: immediately or after some time. Actions of a person directly aimed at causing the death of another person, if due to circumstances beyond the control of the perpetrator they did not lead to this result, are qualified as attempted murder.

The subjective side of murder is characterized by guilt in the form of direct or indirect intent. Attempted murder is possible only with direct intent.

On the subjective side, murder differs from the intentional infliction of grievous bodily harm resulting in the death of the victim, in that in murder the intent of the perpetrator is aimed at depriving the victim of life, and in the commission of a crime under Part 4 of Art. 111 of the Criminal Code of the Russian Federation, the attitude of the perpetrator towards the death of the victim is expressed in negligence. The subject of the murder is a sane individual who has reached the age of 14 years.

Types of murder:

1) simple – murder without qualifying or privileged characteristics (Part 1 of Article 105 of the Criminal Code of the Russian Federation);

2) qualified – murder with aggravating circumstances, i.e. murder:

– two or more persons;

– a person or his relatives in connection with the performance of official activities by this person or the performance of public duty;

– a person who is known to the perpetrator to be in a helpless state, as well as associated with the kidnapping of a person or the taking of a hostage;

– women who are known to be pregnant by the perpetrator;

– committed with particular cruelty;

– committed in a generally dangerous manner;

– committed by a group of persons, a group of persons by prior conspiracy or an organized group;

- for selfish reasons or for hire, as well as associated with robbery, extortion or banditry;

- for hooligan reasons;

– with the aim of concealing another crime or facilitating its commission, as well as involving rape or sexual assault;

– based on national, racial, religious hatred or enmity or blood feud;

– for the purpose of using the victim’s organs or tissues;

3) privileged – murder with mitigating circumstances (Articles 106, 107, 108 of the Criminal Code of the Russian Federation).

7. Murder of a newborn child by a mother. Murder committed in the heat of passion. Causing serious or moderate harm to health in a state of passion.

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Competition between the part and the whole

Competition between the part and the whole comes into force in cases where one of the criminal law norms refers to the entire act in its entirety, and the second only to a separate part of it. When there is competition between simple and complex compounds (part and whole), a norm with a complex composition is applied if all its signs are observed in the crime.

The fundamental rule for resolving questionable situations regarding competition of this type: in such situations, a norm that shows a greater degree of crime and is based on a greater number of crime factors.

If we take as a basis the crime of robbery, causing particularly serious harm to health (possibly death), then in such cases the factors responsible for the crime itself, and not for preparation and conspiracy, will come into force.

If one and the same crime can be included in the assessment in a competitive area, then in the case of a part and a whole, the one that evaluates the situation fully is used. That is, parts with different degrees of severity are assigned to a more serious offense.

There are also precedents in which the corpus delicti is assessed in accordance with its qualifications, that is, when committing attacks on someone else’s property with the infliction of particularly serious bodily injuries on the owner of the property. In such circumstances, the article responsible for theft of illegal weapons into private property comes into force.

the main thing is a more severe punishment;
the assessment is made based on the final result (that is, after completion of the action, without including preparation for the crime).

Consequently, in the competition of a separate part or an entire crime, the one that determines a more severe or severe punishment wins.