Text of the book “Selfish motive in the structure of crimes against personal freedom. Criminal-legal and criminological analysis"

• Brief description of concepts
• Types and features
• Causes
• Characteristics of a selfish personality
• Basic classifications of mercenary criminals

According to the explanatory dictionary, the term “self-interest” implies material benefit or benefit. Selfish motives, which are typical for many, eventually form selfish crimes. This is not a disease, but a special form of deviation that requires correction of consciousness. Stinginess is not about that...

Unselfishness

Brief description of concepts

In the legal and psychological fields, a selfish criminal is an individual who, over the course of his life, under the influence of socio-economic factors, has developed a special behavioral model. This model in psychology is called situational dependence of behavior.

Acquisitive crimes are crimes against someone else's private property. They can be committed in the form of illegal appropriation of someone else's property in order to obtain additional funds from this property, as well as for the purpose of illegitimate use or disposal of private property.

According to statistics, selfish intent is the most common motive for crimes - in 45-50% of cases.

Types and features

The main types of crimes of mercenary criminals:

• robbery;
• fraud;
• extortion;
• robbery.

The category of mercenary crimes also includes actions of an economic nature (production and use of counterfeit banknotes, bribes). The most common features are:

1. Fraud is the most popular trend in modern society.
2. Encroachments are applied outside of economic activity.
3. The main motivation of the criminal: obtaining material benefits, getting rich quickly and easy money.
4. Theft is the most common form of appropriation of another person's private property.
5. The fraudster pursues a specific goal: the conversion of someone else’s property in favor of the culprit, illegal seizure.

Causes

There are a number of reasons that push a person to commit crimes:

• financial difficulties;
• shortcomings in the legislative sector;
• lack of government control over the economic and business spheres of activity;
• economic-social inequality;
• low rate of crime detection, since law enforcement agencies do not always cope with the assigned tasks;
• public legal nihilism;
• marginalization of the population and high unemployment rates.

Selfish crimes are a consequence of a person’s selfish orientation. It is influenced by the previously mentioned factors, although the vast majority of individuals have selfish motives and desires.

In accordance with paragraph 11 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)” under paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder for mercenary motives

) should be classified as a murder committed in order to obtain material benefits for the perpetrator or other persons (money, property or rights to receive it, rights to living space, etc.) or to get rid of material costs (return of property, debt, payment for services, execution property obligations, payment of alimony, etc.)[1].

Thus, selfish motives

are manifested in the desire of the perpetrator:

1) get

benefit of a material nature for oneself or for others, or

2) get rid of

from material costs.

In the legal literature, a more detailed classification of mercenary murder is given and four of its varieties are distinguished:

1) murder aimed at obtaining all kinds of material benefits (money, securities, other property);

2) murder, which is committed to acquire property rights (authorities) - to living space, to a land plot, to inherited property, etc.;

3) murder in order to get rid of a property encumbrance (alimony, debts, other material costs or obligations);

4) murder for the purpose of achieving other material gain (elimination of a competitor, taking the life of a colleague in order to take him to a higher paid position, etc.)[2].

The doctrine of criminal law and judicial practice classifies as murder for mercenary motives cases when the death of the victim is committed for the purpose of:

— getting rid of the obligation to satisfy property claims, both protected and not protected by law (return of part of jointly stolen property, gambling debt, etc.);

— temporary use of property (property rights);

— deferment of material costs.

Is not

murder is mercenary if it is committed:

- during a quarrel (fight) over property (property rights) (the victim did not repay the debt, did not pay for the work performed, etc.);

- when protecting property by the perpetrator;

- for the purpose of returning one’s own (actual or alleged) property (property rights) from the unlawful possession of the victim or in connection with the unlawful use of property by the victim;

— out of revenge for material damage caused to the victim[3].

Murder for mercenary reasons can be committed either through action or through inaction.

Intent for mercenary murder can be either direct

, and
indirect
, and a selfish goal always appears
before
the murder is committed.

The qualification of mercenary murder is not affected by whether the perpetrator achieved his selfish goal or not. Consequently, the moment of the end of the crime is considered the moment of death of the victim, regardless

from achieving selfish goals.

The victim of mercenary murder can be any person

(property owner, owner, security guard, other person).
The determining factor in qualifying a murder as committed for mercenary reasons is the motive
of the crime. Consequently, a mistake in the identity of the victim also does not affect the qualification of mercenary murder. It will be completed regardless of the fact that the death is caused to another person (for example, instead of the creditor, the perpetrator takes the life of his twin brother).

Like a murder for hire

It is necessary to qualify murder if the perpetrator of the crime receives material or other
reward
. Persons who organized a murder for reward, instigated its commission or assisted in the commission of such a murder are liable under the relevant part of Art. 33 and paragraph “h”, part 2, art. 105 of the Criminal Code of the Russian Federation[4].

Murder for hire (“contract killing”) is provided for for the first time in the Criminal Code of the Russian Federation. According to the Criminal Code of the RSFSR, murder for reward was qualified as mercenary

murder. The perpetrator was responsible for the murder for selfish reasons, and the customer was responsible as an accomplice (instigator or organizer) of this crime.

To hire means to hire someone for work or for temporary use for a fee, therefore, a mercenary is someone who has sold himself to someone, who, out of low, selfish motives, protects the interests of others[5].

Thus, murder for hire involves:

1) committing a crime for reward

;

2) in the interests of another person

[6].

One should agree with the opinion of some scientists who consider murder for hire a special case of murder for mercenary motives [7], which are related to each other as general and particular (special), part and whole.

In this regard, it should be recognized that the identification of the type of qualified murder under consideration is not entirely justified, since in some situations this in practice causes serious difficulties in qualifying the actions of the perpetrators.

However, the existence of murder for hire in criminal law makes it necessary to distinguish it from mercenary murder. They differ from each other in two main ways:

1) presence as dominant

(predominant)
selfish motive
for
the perpetrator
(mercenary) of the murder - the desire to receive a reward from the person who ordered the murder (receiving material benefits or exemption from material costs) - and
the absence
, as a rule, of other motives arising from personal (domestic) or other relationships with the victim ( revenge, jealousy, envy, hatred, hostility, etc.);

2) the performer’s

murder for hire
initiative
(personal interest) to take the life of the victim, which comes from the person who ordered the crime.
While in case of mercenary murder, the perpetrator acts on his own
initiative (in the case of a single execution of the crime) or causes
personal interest
(not through reward, but in another way!) for the perpetrator of mercenary murder in taking the life of the victim, acting as an organizer or instigator.

Due to the fact that murder for hire (for a fee) is a private (special) case of murder for mercenary motives, an additional indication of the qualifying feature of murder “for mercenary motives” is unnecessary[8].

The legal literature rightly expresses the opinion that murder for hire involves the receipt of remuneration by the perpetrator

crimes.
Consequently, if material remuneration for committing a murder is received by accomplices -
“accomplices” (instigator, organizer or accomplice), and not the perpetrator, then qualification under paragraph “z” of Part 2 of Article 105 of the Criminal Code of the Russian Federation on the basis of hiring is excluded[9].

In contrast to the selfish motive of the perpetrator of a murder for hire, the motives and goals of the person who ordered the crime can be very different

(selfish motives, revenge, jealousy, envy, hostility, concealing another crime or facilitating its commission, removal of organs or tissues of the victim, getting rid of an unwanted person (extortionist, blackmailer, spouse, co-worker, etc.).

Due to the fact that the motives and goals of the customer and the perpetrator of the murder may not coincide, in the theory of criminal law and in practice, problems may arise in qualifying the actions of the perpetrators. The following circumstances must be taken into account. If the performer knows

or
guesses
about the motives (goals) of the customer, then his actions should be qualified, in addition to paragraph “h” of Part 2 of Article 105 of the Criminal Code of the Russian Federation
in addition
to that paragraph of the said article, which provides the motive (purpose) of murder as an aggravating circumstance (revenge for the execution official activity or public duty, conceal or facilitate the commission of a crime, removal of organs or tissues, etc.).

If the customer hires a performer to take the life of a special victim

, which acts as an additional object of criminal legal protection (state or public figure, judge, prosecutor, law enforcement officer), then if the perpetrator is aware of this circumstance, his actions should be qualified
only
under the relevant article of the Criminal Code of the Russian Federation (Articles 277, 295 , 317) and additional qualifications under clause “h”, part 2, article 105 of the Criminal Code are not required.

The situation is more complicated with the qualification of the customer’s actions when the performer does not know about his true motives and goals (attack on the life of a special victim). In the legal literature, in such a situation, it is proposed to qualify the actions of the contractor only under clause “h”, part 2, article 105 of the Criminal Code of the Russian Federation, and the customer – as complicity in the form of co -assistance

(incitement or organization) in an attack on the life of a special victim (Articles 277, 295, 317 of the Criminal Code of the Russian Federation)[10].

It seems that we can agree with the opinion expressed in the legal literature that the qualification of the actions of the customer and the contractor under different articles of the Criminal Code is in some cases possible. However, the qualification of the customer’s actions as a co-assistant

(instigator or organizer) in a crime where
there is no
perpetrator looks ridiculous.
It seems that his actions are more logical to regard as indirect
(“mediocre”) execution of a crime on the basis of Part 2 of Article 33 of the Criminal Code of the Russian Federation, since the customer uses the mercenary “in the dark” and with his hands (through the use of another person) commits another crime, in relation to which The mercenary has no guilt.

If the person who ordered the murder takes part in causing the death of the victim jointly

with a mercenary (performs at least part of the objective side of the crime), then the actions of both should be
additionally
qualified under clause “g”, part 2 of article 105 of the Criminal Code of the Russian Federation.

Difficulty in qualifying arises in the case when the customer hires a co-perpetrator to encroach on the life of a special victim (state or public figure, judge, law enforcement officer), but does not tell the mercenary about this. It is obvious that the actions of the customer-executor should be qualified only

according to the corresponding special norm (Articles 277, 295, 317 of the Criminal Code of the Russian Federation).

The actions of the mercenary-executor, it seems, need to be qualified, in addition to clause “h”, part 2, article 105 of the Criminal Code, in addition to clause “g”, part 2, article 105, based on the intent to kill by a group of persons by prior conspiracy, but with reference on Part 3 of Article 30 of the Criminal Code

, since formally there is no group murder
of another person
, whose life is
the main
direct object of criminal legal protection.

It is more difficult to give a legal assessment in a situation where the customer of the crime, who has not reached the age of 16, hires a perpetrator to commit an attack on a special victim.

If the mercenary knows the motives for the attack and the signs of a special victim, then the actions of the mercenary-executor must be qualified only under the relevant articles (Articles 277, 295, 317 of the Criminal Code of the Russian Federation). The actions of a minor customer, it seems, must be qualified under clause “b”, part 2, article 105 of the Criminal Code of the Russian Federation without reference to article 33 of the Criminal Code as indirect

(“mediocre”)
performer
in accordance with Part 2 of Article 33 of the Criminal Code of the Russian Federation.

If the mercenary does not know about the signs of a special victim, but knows that he is taking the life of the victim for his official activities, then his actions should be qualified as murder for hire of a person in connection with the performance of official activities (according to the totality of paragraphs “b” and “h” Part 2 of Article 105 of the Criminal Code of the Russian Federation), and the actions of a minor customer should be assessed as co-assistance

(incitement or organization) in such a murder (with reference to the relevant part of Article 33 of the Criminal Code of the Russian Federation).

In case of complete ignorance

mercenary about the motives for the murder, the perpetrator should be held liable
only
for murder for hire, and the 14-15-year-old customer is liable as
an assistant
(instigator, organizer) in murder for hire and
an indirect
(“mediocre”)
perpetrator
of the murder of a person in connection with his execution official activities.

Murder for hire is committed in the presence of a voluntary

agreement between the mercenary and the customer. Consequently, violent coercion on the part of the customer in relation to the perpetrator excludes the qualifying feature in question, even if the customer offers to financially compensate for the “work” of the perpetrator of the murder, since the dominant (predominant, main) motive for the latter is characterized by a feeling of fear for his life or the lives of his loved ones.

As associated with robbery, extortion or banditry

murder
in the process
of committing these crimes should be classified. What was done in such cases is qualified under paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation in conjunction with articles of the Criminal Code providing for liability for robbery, extortion or banditry[11].

If the murder was committed during a robbery, then the imputation of the qualifying characteristic “for mercenary reasons” is unnecessary.

Despite the fact that the Plenum of the Supreme Court of the Russian Federation recommends that “robbery murder” be classified in its entirety, the legal literature ambiguously resolves the issue of qualifying murder associated with robbery.

Some scientists believe that the commission of another crime in the case of murder (rape, robbery, extortion, banditry, etc.) has already been taken into account

in the design of the composition and when establishing a sanction and, in essence, represents the taken into account real combination of two crimes, which should be qualified under one article of the Criminal Code of the Russian Federation[12].

However, judicial practice follows the path of qualifying “robbery murder” in its entirety.

Thus, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 “On judicial practice in cases of theft, robbery and robbery” specifies the recommendation given in the resolution “On judicial practice in cases of murder.” Paragraph 22 of the said resolution states that if a person commits murder of the victim during a robbery, what he has done should be qualified under paragraph “h” of part two of Article 105 of the Criminal Code of the Russian Federation, as well as according to paragraph “c” of part three of Article 162 of the Criminal Code of the Russian Federation. If there are other aggravating circumstances in the actions of the person guilty of robbery (for example, robbery committed by a group of persons by prior conspiracy, with illegal entry into a home, with the use of weapons, etc.), these signs of the objective side of robbery must be indicated in the descriptive part of the sentence [13].

The most difficult question is the delimitation of murder committed for mercenary reasons from murder associated with robbery.

The overwhelming majority of scientists, one way or another, come to the conclusion that robbery differs from mercenary murder in the way of taking property - an attack on the victim with the aim of immediately obtaining the property located with the victim in the process

murder or
immediately after
it[14].

Concretizing the above position, A.N. Popov believes that the distinctive feature of murder for mercenary reasons

is that when committing it, the perpetrator seeks either:

a) get benefits

material nature (property rights),

b) either free yourself

from material costs (maintenance of dependents, debt payments, etc.).

When committing a murder involving robbery

, the goal of the perpetrator is
to confiscate
and
take possession
of the victim’s property (usually movable), even if it is carried out after some time (for example, after a week (month), the perpetrator, using the keys taken from the victim, entered his apartment, garage and stole property, car)[15].

It seems that murder should be classified as associated with robbery only if it is committed in connection with

with robbery and there is
a real totality
of these crimes.
Consequently, robbery is possible only during the
robbery or immediately
after
it, or
before
the robbery against one of the victims followed by an attack on the other victim.
In all other cases, it seems that the murder should be qualified as committed for selfish reasons.
Murder associated with extortion or banditry should be classified in the same way.

[1] See: Judicial practice to the Criminal Code of the Russian Federation. – pp. 392-393.

[2] See: Borisov V.I., Kuts V.N. Crimes against life and health: qualification issues. Kharkov, 1995. – P. 9.

[3] See: Popov A.N. Decree. slave. – pp. 738-740.

[4] See: Judicial practice to the Criminal Code of the Russian Federation. – pp. 392-393.

[5] See: Ozhegov S.I. Decree. slave. – P. 379, 385.

[6] In civil law, a rental agreement is an analogue of a work contract, which is defined in Part 1 of Article 702 of the Civil Code of the Russian Federation as follows: “Under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver it the result to the customer, and the customer undertakes to accept the result of the work and pay for it.”

[7] See: Andreeva L.A. Qualification of murders committed under aggravating circumstances. – P.28.; Nafiev S.Kh. Acquisitive murder: concept, types, qualifications (criminal legal and criminological aspects). Kazan, 1999. – P.57; Popov A.N. Decree. slave. – P.750.

[8] See: Bulletin of the Supreme Court of the Russian Federation. 2000. - No. 1; 2002. - No. 9.

[9] See: Popov A.N. Decree. slave. – pp. 752-753.

[10] See: Popov A.N. Decree. slave. – P.758.

[11] See: Judicial practice to the Criminal Code of the Russian Federation. – pp. 392-393.

[12] See: Volzhenkin B.V. The principle of justice and the problem of multiplicity of crimes under the Criminal Code of the Russian Federation // Legality. – 1998. – No. 12.

[13] See: Bulletin of the Supreme Court of the Russian Federation. – 2003. – No. 2.

[14] See: Shargorodsky M.D. Responsibility for crimes against the person. L., 1953. – P.18-19; Korzhansky N.I. Qualification by the investigator of crimes against person and property. Volgograd, 1984. – P.9; Andreeva L.A. Decree. slave. – P.29; Borodin S.V. Decree. slave. – P.138; Boytsov A.I. Crimes against property. St. Petersburg, 2002. – P.475-476.

[15] See: Popov A.N. Decree. slave. – P.791-793.

Characteristics of a selfish personality

In any situation when control weakens, the self-interested personality type is triggered to commit illegal actions. Such people develop a non-normative pattern of behavior earlier than others.

In psychology, there are a number of qualities that are inherent in the selfish type. Crimes against private property are in most cases committed by males. This statement is especially true in relation to selfish-violent offenses.

Among the participants in property atrocities, people in the age category from 20 to 35 years predominate, and by social class - the working class.

The criminal is distinguished by the following psychological and moral qualities:

1. Incorrect (atrophied) understanding of the role of money in human life.
2. Orientation in life at the lowest level is primitive consumer.
3. Negative attitude towards successful people and the interests of society.

Thieves are more socialized, their anxiety level is much lower. Therefore, they are less impulsive in their actions and are satisfied with their position in society. Such criminals are well versed in social requirements and legal norms and strive to form new contacts. They are more sociable and do not feel an overwhelming sense of guilt.

Fraudsters have a special characteristic: they are intellectually developed and play well on their opponent’s shortcomings and weaknesses. Know and practice psychological techniques and NLP techniques.

Resourcefulness, sociability, energy, cunning and determination allow them to establish close contacts and close business relationships with people previously unfamiliar to them. Fraudsters are calculating and cold-blooded; they tend to think through strategies and be one step ahead of the rest.

Basic provisions

Let's start with the fact that this type of atrocity falls under Part 2 of Article 105 of the Criminal Code of the Russian Federation, paragraph “h”.
In the legal acts of the USSR, such crimes were characterized only as committed for selfish purposes. However, the term “self-interest” itself is a rather vague definition. Therefore, by the resolution of the Plenum of the Supreme Court, adopted for execution on January 27, 1999, some amendments were made to the provisions of Article 105. In particular, for the paragraph “h” we are considering, a clarification has appeared that murder committed for mercenary purposes should be considered crimes that imply direct material benefit for the accused or third parties. This includes the acquisition of financial, property and other rights, as well as release from material obligations. For example, murders committed to obtain an inheritance or to avoid repaying a debt.

In addition, murders committed for hire fall under paragraph “h” of Part 2 of Article 105. Here there is a direct connection between the death of the victim and the material gain of the performer. The basis for this is paragraph 11 of the resolution of the Plenum of the Supreme Court.

Important! Responsibility under this paragraph of the article also extends to third parties acting as the organizer of a murder or inciting its commission. Download for viewing and printing:

Article 105 of the Criminal Code of the Russian Federation “Murder”

Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)”

Features of murder for selfish motives

For murder committed for mercenary reasons, there are a number of features that characterize this category of crimes.
In particular, the defendant intends to obtain personal benefit from the death of the victim. One of the motives for such atrocities is the reluctance to answer for one’s obligations. For example, A borrowed a large sum of money from B. The lender repeatedly reminded the borrower to repay the debt, but he had no intention of repaying it. Tired of the reminders, B threatened A to restore justice through the court, the latter, not wanting to pay, stabbed B several times in the heart area. The victim died on the spot from his wounds. Here there is a material gain: the accused expects that with the death of the victim he will not have to pay off his loan obligations.

Murder for hire looks a little different. Here, the defendant does not directly benefit from the death of the victim. Essentially, we are talking about performing work assigned to a third party. However, here we are also talking about murder and receiving a monetary reward for it.

A separate line includes murders committed during robbery, extortion, and banditry. In such situations, the death of the victim is considered indirect intent, because the true motives of the criminals are to make money. However, when investigating such cases, the accused are charged not only with murder, but also with penalties provided for under articles for robbery, banditry and extortion.

It should be noted that a material motive for committing a murder is not visible in the following cases:

• committed out of revenge: when the victim does not repay the debt or refuses to pay for the work performed/service provided;
• recovery of property that the victim is unlawfully in possession of;
• property disputes;
• if the life of the deceased was pledged as a bet.

In addition, there are no selfish motives if the accused commits murder in defense of property. In this situation, the crime can be classified as an excess of self-defense or committed in a state of passion.

Attempted murder

According to the provisions of the Criminal Code, murder is considered committed from the moment of death of the victim, which determines the elements of the crime.
However, the timing of death is not specified. For example, the accused initially intended to kill the victim by shooting the latter with a hunting rifle. As a result of his injuries, the victim fell into a coma and died some time later in the hospital. From the moment of his death, the murder is considered committed, and the suspect will be charged under Article 105 of the Criminal Code of the Russian Federation. The situation will be somewhat different if the above victim manages to survive. In this case, there is criminal intent, but the crime is not completed. This is called attempted murder.

Important! Murder can be committed with direct or indirect intent. If we are talking about an attempt, direct intent is always implied here: the accused intended to commit the crime consciously, but regardless of his actions, it did not take place.

Basic classifications of mercenary criminals

One of the first was created by Aristotle; he identified two types: the self-interest of the poor and the rich. The former lack vital items. The latter have a craving for excess. They strive to accumulate as much as possible.

These two categories are still relevant now, because social inequality is present in the 21st century.

There is another classification that distinguishes between types of selfish criminals. They are determined by psychological stability and readiness to implement criminal plans.

1. Situational - a crime is committed as a result of a difficult life situation. Most likely, this person has not previously broken the law.
2. Unstable - a person also commits a selfish crime for the first time, but before he was noticed to have immoral acts. They can be very different, up to the unfair distribution of property rights.
3. A malicious person is a criminal type of personality who has committed offenses (serious and moderate) more than once, incl. he could be punished for them.
4. A particularly malicious person is a person who systematically commits serious crimes and has been imprisoned more than once.

Based on the nature of the motivation that stimulates the emergence of selfish attitudes, criminology identifies five main personality types.

1. Family - offenses are committed in the interests of relatives.
2. Drug and alcohol crimes are carried out to obtain a new dose of alcoholic beverages or drugs.
3. It is stated that enrichment through illegal means is necessary to raise self-esteem.
4. Gaming - a person needs thrills, so he commits selfish atrocities, thereby taking risks and satisfying his desires.
5. Maladaptive - Delinquency is carried out to survive or to adapt to the environment.

For mercenary criminals, career development begins much earlier than for other lawless criminals. Therefore, by the age of 30, they accumulate extensive experience in criminal atrocities and form certain habits towards an immoral lifestyle.

Legislative framework of the Russian Federation

In order to ensure the correct application of legislation providing for liability for intentionally causing the death of another person, the Plenum of the Supreme Court of the Russian Federation decides to give the following clarifications to the courts:

1. When considering cases of murder, which is a particularly serious crime, for the commission of which it is possible to impose the most severe punishment provided for in Art. 44 of the Criminal Code of the Russian Federation of types of punishments, courts are obliged to strictly comply with the requirement of the law for a comprehensive, complete and objective study of the circumstances of the case.

In each such case, the form of guilt must be established, the motives, purpose and method of causing the death of another person must be clarified, as well as other circumstances that are important for the correct legal assessment of the crime and the imposition of a fair punishment on the perpetrator must be examined.

2. If murder can be committed with both direct and indirect intent, then attempted murder is possible only with direct intent, that is, when the act indicated that the culprit was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability the death of another person and wanted it to happen, but the death did not occur due to circumstances beyond his control (due to the active resistance of the victim, the intervention of other persons, timely provision of medical care to the victim, etc.).

3. It is necessary to distinguish murder from the intentional infliction of grievous bodily harm resulting in the death of the victim, bearing in mind that in the case of murder the intent of the perpetrator is aimed at depriving the victim of life, and when committing 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.

When deciding the direction of the intent of the perpetrator, one should proceed from the totality of all the circumstances of the crime and take into account, in particular, the method and weapon of the crime, the number, nature and location of bodily injuries (for example, injuries to vital organs of a person), as well as the previous crime and subsequent behavior of the perpetrator and the victim, their relationship.

4. According to Part 1 of Art. 105 of the Criminal Code of the Russian Federation qualifies murder committed without the qualifying features specified in Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and without mitigating circumstances provided for in Art. Art. 106, 107 and 108 of the Criminal Code of the Russian Federation (for example, in a quarrel or fight in the absence of hooligan motives, out of jealousy, motivated by revenge, envy, hostility, hatred, arising on the basis of personal relationships).

5. According to paragraph “a” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation should qualify the murder of two or more persons if the actions of the perpetrator were covered by a single intent and were committed, as a rule, simultaneously.

The murder of one person and the attempted murder of another cannot be considered a completed crime - the murder of two persons. In such cases, regardless of the sequence of criminal actions, the act should be qualified under Part 1 or Part 2 of Art. 105 and according to Part 3 of Art. 30 and paragraph “a”, part 2, art. 105 of the Criminal Code of the Russian Federation.

6. According to paragraph “b” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation qualifies the murder of a person or his relatives, committed with the aim of preventing the person from lawfully carrying out his official activities or fulfilling a public duty, or for reasons of revenge for such activities.

The performance of official activities should be understood as the actions of a person included in the scope of his duties arising from an employment agreement (contract) with state, municipal, private and other duly registered enterprises and organizations, regardless of the form of ownership, with entrepreneurs whose activities do not contradict the current legislation, and under the fulfillment of public duty - the implementation by a citizen of both the duties specifically assigned to him in the interests of society or the legitimate interests of individuals, and the commission of other socially useful actions (suppression of offenses, reporting to authorities about a committed or impending crime or the whereabouts of a wanted person in connection with the commission of offenses, giving evidence by a witness or victim incriminating a person in committing a crime, etc.).

Persons close to the victim, along with close relatives, may include other persons who are related to him or her (relatives of the spouse), as well as persons whose life, health and well-being are known to the perpetrator to be dear to the victim due to established personal relationships.

7. According to paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder of a person known to the perpetrator to be in a helpless state) should qualify the intentional infliction of death on a victim who is unable, due to a physical or mental state, to defend himself or to provide active resistance to the perpetrator, when the latter, while committing the murder, is aware of this circumstance. Persons in a helpless state may include, in particular, seriously ill and elderly people, young children, people suffering from mental disorders that deprive them of the ability to correctly perceive what is happening.

When qualifying the actions of the perpetrator under paragraph “c” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on the basis of “murder associated with kidnapping or hostage-taking”, it should be borne in mind that, within the meaning of the law, liability under this paragraph of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is punishable not only for intentionally causing the death of the kidnapped person or hostage, but also for the murder of other persons committed by the perpetrator in connection with the kidnapping or hostage-taking. The act must be qualified in conjunction with the crimes provided for in Art. 126 or art. 206 of the Criminal Code of the Russian Federation.

8. When qualifying a murder under clause “d”, part 2 of art. 105 of the Criminal Code of the Russian Federation must be based on the fact that the concept of special cruelty is associated both with the method of murder and with other circumstances indicating the manifestation of special cruelty by the perpetrator. At the same time, in order to recognize a murder as committed with particular cruelty, it is necessary to establish that the intent of the perpetrator included committing the murder with particular cruelty.

A sign of special cruelty is present, in particular, in cases where, before the deprivation of life or in the process of committing a murder, the victim was subjected to torture, torture or mockery of the victim, or when the murder was committed in a way that the perpetrator knows is associated with causing special suffering to the victim (causing great number of bodily injuries, the use of painful poison, burning alive, prolonged deprivation of food, water, etc.). Particular cruelty can be expressed in committing a murder in the presence of people close to the victim, when the perpetrator was aware that his actions were causing them special suffering.

Mockery of a corpse in itself cannot be regarded as a circumstance indicating the commission of a murder with particular cruelty. What was done in such cases, unless there is other evidence of the perpetrator showing particular cruelty before taking the victim’s life or in the process of committing a murder, should be qualified under the relevant part of Art. 105 and under Art. 244 of the Criminal Code of the Russian Federation, which provides for liability for desecration of the bodies of the dead.

The destruction or dismemberment of a corpse for the purpose of concealing a crime cannot be grounds for qualifying a murder as committed with particular cruelty.

9. A generally dangerous method of murder (clause “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation) should be understood as a method of intentionally causing death, which the perpetrator knows to pose a danger to the life of not only the victim, but at least one other person (for example, by explosion, arson, firing shots in crowded places, poisoning water and food that other people besides the victim use).

If, as a result of the generally dangerous method of murder used by the perpetrator, the death of not only a certain person, but also other persons, occurred, the act must be qualified, in addition to paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, under paragraph “a”, part 2 of Art. 105 of the Criminal Code of the Russian Federation, and in case of harm to health to other persons - under paragraph “e” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and under articles of the Criminal Code providing for liability for intentional infliction of harm to health.

In cases where murder by explosion, arson or other generally dangerous method is associated with the destruction or damage of someone else’s property or with the destruction or damage of forests, as well as plantings not included in the forest fund, the act committed, along with paragraph “e” of Part 2 Art. 105 of the Criminal Code of the Russian Federation, should also be qualified under Part 2 of Art. 167 or part 2 of Art. 261 of the Criminal Code of the Russian Federation.

10. When qualifying a murder under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, it is necessary to take into account what is contained in Art. 35 of the Criminal Code of the Russian Federation defines the concept of a crime committed by a group of persons, a group of persons by prior conspiracy and an organized group of persons.

Murder is recognized as committed by a group of persons when two or more persons, acting together with intent aimed at committing murder, directly participated in the process of taking the life of the victim, using violence against him, and it is not necessary that the injuries leading to death were caused by each of them ( for example, one suppressed the victim’s resistance, deprived him of the opportunity to defend himself, and the other inflicted fatal injuries on him). Murder should be recognized as committed by a group of persons even in the case when, in the process of one person committing actions aimed at intentionally causing death, another person (other persons) joined him for the same purpose.

A preliminary conspiracy to murder presupposes an agreement expressed in any form between two or more persons, which took place before the commencement of actions directly aimed at taking the life of the victim. At the same time, along with co-perpetrators of the crime, other members of the criminal group may act as organizers, instigators or accomplices of murder, and their actions should be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation.

An organized group is a group of two or more individuals united by the intent to commit one or more murders. As a rule, such a group carefully plans a crime, prepares murder weapons in advance, and distributes roles between group members. Therefore, when a murder is recognized as committed by an organized group, the actions of all participants, regardless of their role in the crime, should be qualified as co-perpetrator without reference to Art. 33 of the Criminal Code of the Russian Federation.

11. According to paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (murder for mercenary motives) should qualify a murder committed with the aim of obtaining material benefits for the perpetrator or other persons (money, property or rights to receive it, rights to living space, etc.) or getting rid of material costs (refund property, debt, payment for services, fulfillment of property obligations, payment of alimony, etc.).

A murder caused by the receipt by the perpetrator of the crime of material or other reward should be classified as murder for hire. Persons who organized a murder for reward, instigated its commission or assisted in the commission of such a murder are liable under the relevant part of Art. 33 and paragraph “h”, part 2, art. 105 of the Criminal Code of the Russian Federation.

Murder in the process of committing these crimes should be classified as involving robbery, extortion or banditry. What was done in such cases is qualified under paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation in conjunction with articles of the Criminal Code providing for liability for robbery, extortion or banditry.

12. According to clause “i”, part 2 of Art. 105 of the Criminal Code of the Russian Federation should qualify murder committed on the basis of obvious disrespect for society and generally accepted moral norms, when the behavior of the perpetrator is an open challenge to public order and is caused by the desire to oppose himself to others, to demonstrate a disdainful attitude towards them (for example, deliberately causing death for no apparent reason or with using a minor reason as a pretext for murder).

If the culprit, in addition to murder for hooligan motives, committed other deliberate actions that grossly violated public order, expressed clear disrespect for society and were accompanied by the use of violence against citizens or the threat of its use, as well as the destruction or damage of other people’s property, then what he did should be qualified according to the law. "and" part 2 art. 105 of the Criminal Code of the Russian Federation and the corresponding part of Art. 213 of the Criminal Code of the Russian Federation.

To correctly distinguish between murder for hooligan reasons and murder in a quarrel or fight, it is necessary to find out who initiated it, and whether the conflict was provoked by the perpetrator to use it as a pretext for murder. If the instigator of a quarrel or fight was the victim, as well as in the case where the conflict was caused by his illegal behavior, the perpetrator cannot be held responsible for murder for hooligan motives.

13. Within the meaning of the law, qualification under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the murder of a certain person committed by the perpetrator in order to conceal another crime or facilitate its commission excludes the possibility of qualifying the same murder, in addition to the specified paragraph, under any other paragraph of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, which provides for a different purpose or motive for murder. Therefore, if it is established that the murder of the victim was committed, for example, for mercenary or hooligan motives, it cannot simultaneously be qualified under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

Murder involving rape or violent acts of a sexual nature should be understood as murder in the process of committing these crimes or for the purpose of concealing them, as well as committed, for example, out of revenge for resistance provided during the commission of these crimes.

Considering that in this case two independent crimes are committed, the crime should be qualified under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and, depending on the specific circumstances of the case, under the relevant parts of Art. 131 or Art. 132 of the Criminal Code of the Russian Federation.

14. In accordance with Art. 16 of the Criminal Code of the Russian Federation, which defines the concept of repetition of crimes, under paragraph “n” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation qualifies the actions of a perpetrator who has committed two or more murders in the absence of a single intent to commit them and, as a rule, at different times. Murder is recognized as being committed repeatedly if it was preceded by the commission of crimes provided for in Art. 105 of the Criminal Code of the Russian Federation and (or) Art. Art. 102, 103 of the Criminal Code of the RSFSR. Within the meaning of the law, the basis for qualifying the actions of the perpetrator under paragraph “n” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is also the commission of crimes under Art. Art. 277, 295, 317, 357 of the Criminal Code of the Russian Federation and (or) Art. Art. , , 191.2, paragraph “c” of Art. 240 of the Criminal Code of the RSFSR. Moreover, to qualify an act as a murder committed repeatedly, it does not matter whether the perpetrator was convicted of the first crime, whether he committed a previously completed crime or attempted murder, or whether he was the perpetrator or other accomplice of this crime.

If the perpetrator committed two murders at different times, for the first of which he was not convicted, the act as a whole should be qualified under paragraph “n” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and in the presence of other qualifying features - also under the relevant paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation.

The issue should be resolved similarly if the perpetrator commits two attempted murders, for the first of which he was not convicted. All actions must be qualified under Part 3 of Art. 30 and paragraph “n”, part 2, art. 105 of the Criminal Code of the Russian Federation and, in addition, under the relevant paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, which provides qualifying signs for both attempted murders.

The deed cannot be qualified under paragraph “n” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, if a conviction for a previously committed intentional causing of death to another person was expunged or withdrawn, as well as in the case of a court releasing a person from criminal liability for a previously committed murder due to the expiration of the statute of limitations.

15. The court has the right at this court hearing to change the classification of the defendant’s actions from paragraph “a” to paragraph “n” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and vice versa, if this does not worsen his position and does not violate the right to defense (it is not associated with a significant change in the factual circumstances of the case, including those related to the motive, purpose and method of murder, with the imputation of episodes that increase the actual volume of the previously brought charges , etc.). In all other cases, the court changed the charge from one to another paragraph of Part 2 of Art. 105 of the Criminal Code of the Russian Federation without returning the case for additional investigation is unacceptable.

16. Within the meaning of the law, murder should not be regarded as committed under the qualifying criteria provided for in paragraphs “a”, “g”, “e”, “n” of Part 2 of 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 disturbance or when the limits of necessary defense were exceeded.

17. Murder committed with the qualifying criteria provided for by two or more paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation must qualify on all these points. Punishment in such cases should not be imposed on each point separately, however, when assigning it, it is necessary to take into account the presence of several qualifying criteria.

In cases where the defendant is charged with committing murder with the qualifying criteria provided for in several paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and the charges on some of them were not confirmed, in the descriptive part of the verdict it is enough, with the appropriate motives, to formulate a conclusion that the charges on certain counts are recognized as unfounded.

18. The actions of an official who committed murder while exceeding his official powers should be qualified according to the totality of crimes provided for in Part 1 or Part 2 of Art. 105 and part 3 of Art. 286 of the Criminal Code of the Russian Federation.

Similarly, in conjunction with Part 2 of Art. 203 of the Criminal Code of the Russian Federation must qualify the actions of a manager or employee of a private security or detective service who committed a murder while exceeding the powers granted to him in accordance with the license, contrary to the objectives of his activities.

19. The murder of an employee of a place of deprivation of liberty or a place of detention or a convicted person in order to prevent his correction or out of revenge for the performance of his public duty, committed by a person serving a sentence of imprisonment or being held in custody, must be qualified, in addition to the relevant part of Art. 105 of the Criminal Code of the Russian Federation, under Art. 321 of the Criminal Code of the Russian Federation, which provides for liability for disruption of the normal activities of institutions that ensure isolation from society.

20. When assigning punishment for murder, it is necessary to take into account all the circumstances under which it was committed: the type of intent, motives and purpose, method, setting and stage of the crime, as well as the identity of the perpetrator, his attitude to the crime, circumstances mitigating and aggravating the punishment. Equally, data relating to the personality of the victim, his relationship with the defendant, as well as the behavior preceding the murder must be examined.

The death penalty as an exceptional measure of punishment can be applied for the commission of a particularly serious crime that encroaches on life only when the need for its imposition is determined by special circumstances indicating a high degree of social danger of the act, and, along with this, extremely negative data characterizing the perpetrator as a person who poses an exceptional danger to society.

When a guilty person is sentenced to life imprisonment in accordance with Art. 57 of the Criminal Code of the Russian Federation must indicate the reasons for imposing this punishment as an alternative to the death penalty, which the court considered possible not to apply.

21. In each case of intentionally causing the death of another person, it is necessary to establish the causes and conditions that contributed to the commission of the crime, and, if there are grounds for this, respond to them in the manner prescribed by procedural law.

22. In connection with the adoption of this Resolution, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 15 “On judicial practice in cases of premeditated murders” is declared invalid and the Resolution of the Plenum of the Supreme Court of the USSR dated 27 is considered no longer valid on the territory of the Russian Federation June 1975 No. 4 “On judicial practice in cases of premeditated murder” and dated September 22, 1989 No. 10 “On the implementation by courts of the guidelines of the Plenum of the Supreme Court of the USSR when considering criminal cases of premeditated murder.”

Chairman of the Supreme Court
of the Russian Federation V.M. LEBEDEV
Secretary of the Plenum,
Judge of the Supreme Court of the Russian Federation V.V. DEMIDOV

Selfish purpose as a mandatory sign of theft

UDC 343.2/.7

Siberian Institute of Management - branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation

Selfish purpose as an obligatory sign of theft

Abstract: This article analyzes the significance of selfish intent as one of the most important signs of theft. The concept of theft and its characteristics is given. Based on the research, the author proposes changes to legislation that could change law enforcement practice.

Key words: Theft, selfish intent, theft.

Kozlov AV

A MERCENARY MOTIVE AS AN ESSENTIAL SIGN OF THEFT

Annotation: In this article the importance of mercenary motive as an essential sign of theft is analyzed. The definition and characteristics of theft are given. On the basis of research done, the author suggests to make certain changes in legislation which will affect the application of law.

Keywords:Theft, mercenary motive, stealing.

Theft is one of the most common crimes. The Criminal Code, in a note to Article 158, establishes that theft in criminal law refers to the illegal gratuitous seizure and (or) conversion of someone else's property in favor of the perpetrator or other persons committed for mercenary purposes[1].

However, neither the criminal code nor criminal legislation in general contains a definition of self-interest. Ozhegov’s dictionary defines self-interest as benefit, material benefit [5, p. 325]. In a commonly used context, a selfish goal is the desire to be able to dispose of stolen property at one’s own discretion, as one’s own [4, p. 6].

Judicial practice has formed its own understanding of self-interest. An example is the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 1, 2001 No. 51 “On judicial practice in cases of fraud, misappropriation and embezzlement”, it is stated that the selfish goal is the desire to seize and (or) convert someone else’s property in one’s favor or to dispose the specified property as one’s own, including by transferring it into the possession of other persons[2].

At the same time, from a systematic analysis of the legislative definition of theft in all its forms, one can come to the conclusion that theft or robbery should hypothetically always be committed for selfish reasons. In addition, one of the important goals of theft is to obtain material gain and enrichment.

However, a number of scientists do not recognize selfish purpose as a mandatory sign of theft. Law enforcement practice is developing in a similar way. In the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01.01.01 No. 29[3], about

Thus, law enforcement calls for the separation of theft committed for selfish purposes and, therefore, representing a serious public danger, and theft, which is not aimed at obtaining benefits, but for temporary use with an expected return, or if this theft is committed with noble intentions[ 6, p. 180].

Of course, no one can deny that selfish motive is typical for the theft of other people's property. However, other motives, including the most noble ones (helping third parties, charity, etc.), can also push people to commit this type of crime.

Thus, it seems that the theft of someone else’s property without a selfish purpose is not punishable, since it does not constitute either theft or robbery. However, property relations have already been damaged.

This situation creates a real threat that a number of crimes may go unpunished under fictitious pretexts or deliberately false noble motives.

In 2013, a Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for the second half of 2012 was published, approved. By the Presidium of the Supreme Court of the Russian Federation on April 3, 2013, the Court concluded that “the intention to use someone else’s property in the interests of a legal entity, including one headed by an individual who deceived the counterparty in order to seize his property, for personal gain as a sign of theft by the Supreme Court of the Russian Federation not considered. Let us note that there are indeed grounds for such a conclusion”[6, p. 7].

Another problem is the situation when theft in the minds of the person committing the unlawful act is not a crime, but a legal act without any mercenary motives, but the court recognized this act as a crime and the person who does not have a mercenary motive was convicted of theft.

All these problems are associated primarily with the unsettled provisions of the Criminal Code on mercenary motive and problems in the interpretation of greed. A situation has been created where, on the one hand, it is virtually impossible for a person to prove the disinterestedness of his intentions, and on the other hand, its presence is mandatory for the elements of theft.

The author sees a logical solution to this problem as either a legislative broad interpretation of a selfish motive, or a complete exclusion of selfish purpose as a sign of theft. Indeed, with direct intent aimed at illegally confiscating and converting someone else’s property to one’s own benefit, a selfish goal will always be present. Therefore, what is socially dangerous in theft is not the motives of the person, but the harm to social relations that is caused by theft.

Thus, the author proposes a new wording of the note to Article 158 of the Criminal Code of the Russian Federation: “theft in criminal law is understood as the unlawful gratuitous seizure and (or) circulation of someone else’s property in favor of the perpetrator or other persons.”

This formulation reflects the social danger of theft and robbery, because the purpose of any theft is the conversion of property in favor of the guilty person and the court, in the author’s opinion, should not take into account the specific motives that prompt the guilty person to commit a crime.

Scientific supervisor: , senior lecturer at the Department of Criminal Law and Procedure.

BIBLIOGRAPHICAL LIST
Criminal Code of the Russian Federation: Feder. Law - Federal Law (as amended on January 1, 2001) // SZ RF. – 1996. – June 17. – No. 25. – art. 2954. On judicial practice in cases of fraud, misappropriation and embezzlement: Resolution of the Plenum of the Supreme Court of the Russian Federation // Bulletin of the Supreme Court of the Russian Federation. – 2008. – February 2. – No. 2. On judicial practice in cases of theft, robbery and robbery: Resolution of the Plenum of the Supreme Court of the Russian Federation (as amended on January 1, 2001) //Bulletin of the Supreme Court of the Russian Federation. – 2003. – No. 2. Arkhipov, A. Selfish purpose as a sign of theft / A. Arkhipov // Criminal. right. - 2016. - No. 1. - P. 4-8. Ozhegov, Russian language: approx. 60,000 words and phraseols. expressions / ; under general ed. . — 25th ed., rev. and additional - Moscow: Onyx: Peace and Education, 2006. - 976 p. Khilyuta, the purpose of theft: experience of theoretical modeling and problems of law enforcement // Izv. universities Jurisprudence. - 2014. - No. 2. - P. 174-192.