A crime committed through negligence. Lawyer's comment

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The concept of a crime of negligence

Carelessness, characteristic of criminal acts, occupies a significant share among all crimes committed. The progress that has taken place in the scientific and technological direction has had a great influence on the emergence of illegal actions. Their consequences, as a rule, are of increased danger. Crimes committed with guilt in the form of negligence underlie the creation of certain knowledge that contributes to their prevention.

A crime committed carelessly is based on the frivolous attitude of the perpetrator, his arrogance and negligence.

These types of criminal actions also include those that were committed with intent, in the presence of a careless attitude to the consequences.

There is a wide variety of crimes committed in the presence of a careless form of guilt. They can be based on a variety of circumstances arising in the process of implementing social relations.

Crimes may be caused by technical, official and professional negligence. Some of them are characterized by domestic negligence associated with violation of the rules underlying the protection of life, health of people and their property.

This type of action has a special social danger, which is justified by the latency and negligence of the subjects of the acts.

Legal consultation

An experienced lawyer, if there is evidence, will be able to get the crime reclassified as an act of negligence.
. For this he needs: For this he needs:

1. Listen to the client's testimony.
2. Drive to the scene of the incident and inspect it yourself.
3. Study judicial practice and Supreme Court decisions.
4. Collect evidence confirming the commission of an offense due to negligence.

These actions will help you draw up the right tactics for your defense and speak in court to reclassify the offense.

If the offense is associated with a violation of traffic rules, then, according to the lawyer, one cannot refuse to take an alcohol intoxication test, be rude to the traffic police inspector, or behave defiantly. Such actions may negatively affect the defendant's character.

The court’s decision depends on the convincingness of the lawyer’s arguments, so it is important to tell the defense attorney how and under what circumstances the offense was committed, and to present evidence that the offense was committed due to negligence. Otherwise, the lawyer, despite his work experience, will not be able to achieve reclassification of the offense

Types of crimes due to negligence

Criminal law contains two types related to negligence:

• frivolity, which manifests itself in foreseeing the possibility of consequences of a socially dangerous nature when committing crimes, but with the presence of an arrogant, groundless expectation that the consequences will be prevented. The intellectual element in this case is the anticipation of the possible occurrence of negative results. The volitional component lies in the arrogant calculation of preventing consequences. Frivolity is characterized by a conscious violation of the rules governing precaution. It is the awareness of one’s own wrongfulness that makes these crimes more dangerous than those whose guilt is expressed in the form of negligence. Frivolity has a significant difference from intent, manifested in indirect form. This difference lies in the volitional element, which is characterized by the assumption of consequences that pose a danger;
• negligence, which is manifested in failure to foresee the fact that consequences will occur, although the subject himself should have foreseen them with a sufficient level of care and forethought. The objective component of negligence is normative and is expressed in the obligation of individuals to foresee the consequences, which requires care and forethought. The duty may be established by law, official or professional duties and other rules.

The subjective component lies in the ability of individuals to foresee the consequences that may occur as a result of specific illegal actions.

Is it so important to invite an experienced lawyer to defend you?

In order for the actions of the guilty person to be incriminated specifically under Article 168 of the Criminal Code of the Russian Federation, the participation of an experienced, competent lawyer with experience in handling this type of cases is mandatory. The punishment for destroying someone else's property through negligence under the Criminal Code of the Russian Federation provides for a fairly loyal one - so to speak, an alternative one. However, the investigative authorities may decide to reclassify the crime under a related article – 167 of the Criminal Code, which deals with intentional damage to someone else’s property. And the sanctions of this article are already more severe, in contrast to 168 of the Criminal Code.

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Composition of a crime committed through negligence

In their composition, these types of crimes are common and differ only in the subjective side, which manifests itself in the form of negligence.

A careless form of guilt presupposes the presence of a frivolous expectation that the consequences of an unlawful act will be eliminated, or an absolute lack of assumptions about the occurrence of such consequences.

To qualify acts, the form of negligence is important, which can be expressed in the form of frivolity or negligence.

The rest of these crimes are characterized by:

• the presence of a protected object that is encroached upon by the act itself;
• the objective side, which can be expressed both in the form of active actions and inaction;
• subject, which can be both general and special.

Comments on Article 26 of the Criminal Code of the Russian Federation

The Criminal Code of the Russian Federation does not disclose the normative concept of negligence, establishing only its forms.

Carelessness is a form of mental attitude of the subject to the committed act and its consequences, in which there is no volitional desire of the person to cause socially dangerous consequences.

Article 26 of the Criminal Code of the Russian Federation provides for two forms of reckless crimes:

• 1) a crime committed due to frivolity;
• 2) a crime committed due to negligence.

A crime committed recklessly

Frivolity manifests itself both from an intellectual and volitional point of view. The intellectual component is manifested in the possibility of foresight and the arrogant expectation that the consequences that will occur as a result of the crime will be prevented. The volitional part consists of having a desire to prevent them.

Thus, when committing an act that has a careless form of guilt, a person is conscious only of the actions themselves, without seeing in them a social danger, the manifestation of which is characteristic only for the moment when the consequences actually occur.

An example of a crime associated with frivolity may be causing death by a driver of a vehicle who has reached high speed limits, but believes that in the event of an unusual situation he will be able to brake and prevent an emergency, but at the required moment he realizes a malfunction in the braking system. and hits a pedestrian.

This example allows us to establish that a person has a desire to avoid consequences associated with a public danger, foresees the possibility of its occurrence, however, counting on the serviceability of his own car, he believes that negative consequences cannot occur. The motorist's calculation is not justified; as a result, the pedestrian's death occurs.

What does judicial practice show under this article?

Judicial practice under this article is extensive, since, indeed, many persons commit crimes through negligence or frivolity.

Practice examples:

1. Citizen N. was accused of the unintentional death of his colleague A. The investigation found that the citizens drank together, and then A. became ill due to the amount of alcohol he drank. N. was sane and aware of what was happening, but he thought that A. was pretending. Only when he started bleeding from his throat did he call an ambulance. The investigation recognized the murder as frivolous, since N. knew that A. had problems with drinking too much, but everything would be okay.
2. The court considered the case of citizen V., who, being drunk, began shooting a pistol into the air, hoping to attract attention to himself. By chance, one of his bullets hit the balcony on which Citizen E was standing. She was wounded and escaped with fright. V. was arrested, fined, forced to pay for E.’s treatment, and imprisoned for a year.
3. The court heard the case of citizen U., who, confident in his experience and ability to brake or swerve in time, overtook a truck on a narrow road. Without making sure the maneuver is safe. A passenger car was moving towards, and U.’s car collided with it, resulting in the death of the passenger. U. was found guilty of his crime and sentenced to deprivation of his license for 3 years and arrest for a year.

What decisions are most often made under Article 26?

More often, guilty decisions are made under the article. Guilt is always admitted, because the criminal must have realized that he was doing things that were illegal. For minor and moderate crimes, the perpetrators receive a fine, are deprived of the right to hold positions or engage in activities, forced, corrective or compulsory labor. For serious crimes, criminal liability is applied and the perpetrator is imprisoned.

What are most often aggravating and mitigating circumstances?

Such circumstances are not mentioned in the text of the article, but there is a general list of these factors. Aggravating circumstances are a crime in official capacity, on an especially large scale, resulting in death or serious harm to health. Mitigating circumstances – if the perpetrator cooperates with the investigation, admits his guilt, and helps investigate the case. For women, this is pregnancy, the presence of a young child.

Crime committed by negligence

Negligence from the point of view of a criminal offense is characterized by a negative intellectual and volitional aspect. The presence of criminal negligence indicates not only reluctance and avoidance of negative consequences, but also failure to foresee the possibility that they will occur. At the same time, each subject is the bearer of the obligation to show care and foresight in relation to the consequences that may occur as a result of the commission of a particular action.

For criminal negligence, there must be an objective and a subjective criterion. From the point of view of the first, a person is obliged to foresee the likelihood of consequences occurring. The second criterion indicates the existence of the possibility of foreseeing the occurrence of such consequences.

It is possible to qualify guilt in this particular form only if there is a combination of data and criteria. In the event that one of them is missing, guilt is excluded, and with it criminal liability.

The absence of guilt does not mean the presence of a criminal act, but a case (incident). An example of a crime would be a fight that takes place against the background of a friendly dispute, as a result of which both persons receive injuries, while in one of them they are incompatible with life.

Additional features and nuances

The punishment for a careless crime depends on the severity of the consequences. The culprit can get off with a fine of several tens of thousands of rubles, be forced to attend correctional or forced labor, and lose his freedom. The most severe punishment is imprisonment, with a maximum term of 2-3 years , while for intentional murder the offender serves a prison sentence for 20 years, if not life.

The criminal must prove that he behaved carelessly and did not want the tragic consequences that had already occurred. Practice shows that sometimes a person manages to completely avoid responsibility - if the court is convinced that the incident is not his fault. This usually happens in the medical field - it is difficult to prove a doctor’s guilt and hold him accountable.

Causes and conditions of careless crimes, their prevention

Committing crimes with a careless form of guilt has a number of personal factors, as well as situational elements that can play a role in each specific situation.

Determinants related to the subjective side of crimes are more associated with the irresponsible, undisciplined, careless attitude of the subject of the crime.

Organizational and managerial shortcomings, lack of proper control, impunity of individuals, and the presence of victimized behavior can also contribute to criminal acts.

Preventive measures that are used to prevent crimes of this type are complex and multifaceted. First of all, they have a general social and special criminological direction. The rules for labor protection, safe movement on the road, fire safety, etc. are used as standards when carrying out such work.

The traffic police has the most significant place in the system of bodies involved in the prevention of careless crimes. In order to eliminate the possibility of officials committing criminal acts, which may manifest themselves in official negligence, departmental regulatory bodies are created.

Criminal omission and its types

Bibliographic description:

Nikulnikov, A.G. Criminal inaction and its types / A.G. Nikulnikov. — Text: direct // New Legal Bulletin. - 2022. - No. 7 (21). — P. 54-60. — URL: https://moluch.ru/th/9/archive/174/5422/ (access date: 03/03/2022).


The article examines the concept, types and legal nature of inaction, the basis of criminal liability for criminal inaction, and also reveals the circumstances that eliminate liability for criminal inaction.

Key words: criminal inaction, types of criminal inaction, grounds for criminal liability, indicators of criminal inaction, circumstances eliminating liability.

The article discusses the concept, types and legal nature of inaction, the ground for criminal liability for criminal inaction, and also discloses circumstances that eliminate liability for criminal inaction.

Keywords: criminal inaction, types of criminal inaction, the objective side of the crime, the grounds for criminal liability, indicators of criminal inaction, circumstances eliminating liability.

The main task in the activities of law enforcement agencies working in the field of criminal law is the correct qualification of the objective side of the crime. The objective side of a crime is an important prerequisite for criminal liability, its foundation, without which it cannot exist. Therefore, the achievement of the tasks facing criminal law and compliance with the principles of criminal law enshrined in Chapter. 1 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), and in addition - the implementation of the main social function of established criminal law norms - the fight against crime [3]. One of the mandatory elements of the objective side of a crime is a socially dangerous act, which can be expressed in the form of an action - active behavior of a person or inaction - passive behavior of a person.

The largest number of crimes are committed in the form of action, that is, in the form of physical influence of the perpetrator on another person, animal, other object of the material world, as well as his use of machines, mechanisms, properties of things to cause harm to relationships protected by criminal law. Inaction is recognized as abstinence from performing certain bodily movements, the nature of which results in a person’s failure to fulfill his legal obligations. Based on the different nature of actions and inactions, the issue of the possibility of criminal prosecution is ambiguously resolved. If criminal liability can be established for any active behavior that jeopardizes public relations, then for inaction this responsibility is established in the presence of conditions that represent a combination of an objective criterion, expressed in the obligation of a person to act in a specific way, and a subjective criterion that determines the real possibility of a person to perform the necessary actions. actions, that is, excluding damage to one’s interests. The difficulties of assigning criminal liability for criminal inaction, the lack of criminal legal means of stimulating the active behavior of citizens, as well as the fairly high level of the criminological situation in our state at present allow us to conclude that there is a problematic situation on this issue.

Also, the presence of this problem is influenced by the public danger of criminal inaction, which is not fully realized by society. As a result, most crimes committed in a passive form are simply not perceived by victims as such, and therefore are not brought to the attention of law enforcement agencies. But even in cases where this information does reach the jurisdiction of these authorities, the disclosure of these crimes does not always occur. In addition, in cases where this does happen, the execution of court decisions on relevant issues is often not implemented. Law enforcement officials have not fully mastered the understanding and awareness of the issue of bringing to criminal liability for committing criminal inaction.

This problem has become particularly relevant due to the slow but continuous increase in the level of passive crime since 2008. A study of statistical data for the Vladimir, Lipetsk, Moscow, Ryazan and Tula regions generally confirmed the level of prevalence of passive crime (5% of criminal cases). Also, the prevalence of passive crime more than doubles in relation to the jurisdiction of magistrates' courts. The overall growth rate of the level of passive crime over the past ten years amounted to 12.5–20.3% [13].

Concept and types of criminal inaction

Criminal inaction is one of the forms of a socially dangerous act, consisting in non-fulfillment or improper fulfillment of a legal obligation incumbent on a person or in failure to prevent the onset of consequences that the person was obliged and could have prevented. Unlike a criminal act, which consists of active body movements, criminal inaction consists of passive behavior. However, this does not mean that a person does nothing at the time of committing a crime, since inaction in the social, legal and physical sense is different from each other. A person can physically act, take part in various phenomena and processes, but in relation to criminal law, be completely inactive. For example, when a person evades payment of alimony, he commits inaction precisely in relation to the fulfillment of his legal obligation. But at the same time, he can perform active physical movements: he can move from place to place, he can carry out any activity, etc.

According to V.N. Kudryavtsev, “criminal inaction is not a vague “dangerous state” of the criminal, but specific behavior that has certain boundaries in time and space. The main features of criminal inaction (as well as actions) are its social danger and the resulting illegality, which are considered in the specific circumstances of the place, time and situation in which the crime was committed” [5].

Until a certain period, the attitude towards criminal inaction in the science of criminal law was somewhat contradictory. Thus, in criminal law there previously existed another position, diametrically opposed to the currently generally accepted position regarding criminal inaction. It boiled down to the fact that inaction is nothing, and nothing can give birth to something. In my opinion, this is a somewhat unfair position, which has been disputed with sufficient thoroughness by the majority of jurists. The criminal inaction of a person is not “nothing”, but on the contrary, it is a certain behavior. The inaction of one person can in a certain way determine the behavior of another, change it, and thereby influence social relations. In any social relations, any behavior of people is interconnected and conditioned. Timeiko G.V. argued: “human inaction is not zero in the world of reality and not a purely internal act of mental activity, but a material factor, the passive behavior of people objectified externally” [9]. Based on this, we can conclude that harm to relationships protected by criminal law can be caused not only by active actions, but also by passive ones, namely, criminal inaction, which in its criminal social nature is similar to an active criminal action, and therefore should be treated similarly . For example, a plane crash is possible both due to the hijacking of an aircraft by terrorists, whose goal is to collide the plane with another aircraft, and as a result of the inaction of the airport dispatcher, who was absent from work at the right time, which resulted in a plane crash.

Criminal inaction can be expressed both in a single act of inaction, which led to the onset of socially dangerous consequences, and in a systemic failure to fulfill the legal obligations imposed on a person. Thus, a single act of inaction will be the refusal of the doctor on duty, due to laziness, to go on call to a seriously ill patient, which resulted in the death of the latter (Article 124 of the Criminal Code of the Russian Federation). A systematic act of inaction is evasion of conscription for military service in the absence of legal grounds for exemption from this service (Article 328 of the Criminal Code of the Russian Federation).

Grounds for criminal liability for criminal omission

The basis is two mandatory indicators: the person’s obligation to act due to the existence of a legal obligation (must act) and the person’s ability to act in a specific situation (could act). Only if both indicators are present can an act committed by a person be recognized as a criminal omission.

The existence of a legal obligation of a person to act in a particular situation may arise from a number of provisions referred to in criminal law as sources of legal obligation. These include:

– regulations of laws and other criminal legal acts;

– professional and official responsibilities;

– previous behavior of a person that caused the risk of socially dangerous consequences;

– voluntary assumption of certain obligations;

- judicial act.

The first group of sources includes a fairly large layer of social relations that are regulated by criminal law. Various regulatory requirements in the form of duties can be enshrined not only in criminal legal acts, but also in other codified sources of law. In acts of criminal law they are only specified, and sanctions are established for failure to fulfill a specific legal obligation. An example is the duty of parents to bear responsibility for the upbringing and development of their children. This obligation in its primary form is formulated in Part 2 of Art. 38 of the Constitution of the Russian Federation, as well as in a number of norms of the Family Code of the Russian Federation (hereinafter referred to as the RF IC) [1] [2]. In particular, parents are obliged to take care of their health, physical, mental, spiritual and moral development (Article 63 of the RF IC), support their minor children (Article 80 of the RF IC) and disabled adult children in need of help (Art. 85 of the RF IC) , and able-bodied adult children must support their disabled parents in need of help and take care of them (Article 87 of the RF IC). Violation of these legal obligations entails criminal liability, in accordance with Articles 156 (failure to fulfill obligations to raise a minor) and 157 (non-payment of funds for the maintenance of children and disabled parents) of the Criminal Code of the Russian Federation. Making decisions for these crimes is a fairly common occurrence in judicial practice.

Official and professional duties require a person to perform certain duties and perform active or passive actions necessary for their service or profession. Thus, failure by the doctor on duty to provide assistance to a seriously wounded person constitutes a crime under Article 124 of the Criminal Code of the Russian Federation (failure to provide assistance to a patient).

A person whose behavior has created a danger for interests protected by criminal law must prevent harm from occurring. In this case, the inaction is preceded by a certain action of the person, according to which he has a corresponding obligation in relation to the criminal law. An illustration of this can be the case when the driver of a car, who has hit a pedestrian and thereby caused significant harm to his health, is obliged to deliver him to the nearest medical facility or provide him with other assistance. Failure to fulfill this obligation entails criminal liability.

A legal obligation that arises as a result of assumed obligations is characterized by the fact that a person voluntarily assumes certain obligations and fulfills them improperly or incompletely.

Failure to comply with a court sentence, court decision or other judicial act (Article 315 of the Criminal Code of the Russian Federation), evasion of the execution of a court sentence that has entered into legal force on confiscation (Part 2 of Article 312 of the Criminal Code of the Russian Federation) presupposes the existence of a court decision by which a person is obliged to commit certain actions. Accordingly, failure to perform these actions entails criminal liability.

In cases where the subject was not assigned a duty to act in a specific situation, but he had the opportunity to act, this does not entail criminal liability for that person. He can only bear moral responsibility on the part of society, but for criminal law his behavior is indifferent. An example is the case on the railway tracks, when a person passing by saw a fault with the railway track, but did not inform the railway workers about this, as a result of which the train crashed.

The second mandatory indicator of criminal inaction is the person’s ability to act in a specific situation. The ability of a person in this case is a legal category that includes a set of objective conditions in which the person was at the time of committing a particular inaction, with the help of which the ability or inability of a person in a particular situation to perform an action is determined, as well as the presence of subjective conditions, which determine a person’s specific abilities, abilities, skills that can, to one degree or another, somehow influence a specific situation. The presence of objective conditions means the presence of a given person, who has a certain legal obligation, in a specific place, at a specific time, in specific living conditions, in accordance with which the person could fulfill the existing legal obligation. The presence of subjective conditions means that a person has a certain level of knowledge, skills, abilities, abilities, and resources with the help of which a legal obligation could be fulfilled by him.

A person’s ability to act in a specific situation may be limited or excluded altogether due to:

a) the need to perform other, more important duties;

b) danger to the life or health of the person himself.

P. "a" can be illustrated by the following situation. A car driver outside the city on a deserted stretch of road, violating traffic rules, hit two people who were mushroom pickers. One of the pedestrians was in serious condition after a collision with a car, while the second one received practically no injuries and the damage to his health could be classified as minor. Due to the fact that the offender’s car, due to its configuration, was not possible to accommodate more than one passenger in it, the driver placed a person who received serious injuries in it and went to the hospital, when, as a person who received minor injuries, he remained on the road.

For point “b”, a striking example would be a fire in an apartment building, in one of the apartments there was a helpless person without the supervision of relatives. All the neighbors on the floor knew that the man was in a helpless state and theoretically could have tried to rescue him from the burning apartment. However, due to fear for their lives, no one did this, as a result of which the person died. The opposite situation may arise when the person who fears for the preservation of his health or life is a firefighter who arrives on a call. Having received information about a helpless person from his neighbors, he is obliged to risk himself in order to perform his professional duties and in view of the availability of relevant skills and abilities.

The question of the presence or absence of the opportunity to act is decided by the law enforcement officer in each specific case, taking into account all objective and objective circumstances. If a person could not act properly due to objective or subjective reasons, then criminal liability for inaction is excluded. In some cases, the legislator himself names the conditions that limit a person’s ability to act (Article 270 of the Criminal Code of the Russian Federation).

As with the commission of a crime through active actions, when inaction it is important to establish its boundaries, that is, the beginning of criminal inaction and its end. The beginning of criminal inaction should be considered the occurrence of conditions and circumstances under which a person had to perform certain actions and had the opportunity to perform them. For example, the inaction of a doctor who did not provide assistance to a patient begins from the moment the call is received (Article 124 of the Criminal Code of the Russian Federation); inaction of a witness or victim who refused to testify - from the moment of reporting this to the inquiry officer, investigator, prosecutor or court (Article 308 of the Criminal Code of the Russian Federation); failure by a serviceman to comply with an order - from the moment of receipt of an order from a superior, given in the prescribed manner, the availability of the opportunity to execute it and the failure to take the first action to execute the order (Article 332 of the Criminal Code of the Russian Federation) and a number of other articles of the criminal law. The end of criminal inaction occurs when the conditions requiring the performance of certain actions disappear, for example, evasion of conscription for military service (Article 328 of the Criminal Code of the Russian Federation) will continue as long as military duty exists for the person. Also, the end of criminal inaction is possible by its suppression by law enforcement agencies, surrender, change of law, termination of the obligation to act in a certain way, the emergence of circumstances that preclude the possibility of performing the required actions (for example, in the event of circumstances that are the basis for exemption from military service, for example, a serious illness , the ongoing inactivity in question ends).

Criminal law distinguishes between types of criminal inaction: pure inaction and mixed inaction.

Pure inaction is characterized by exclusively passive, from the point of view of criminal law, behavior of a person. This type of inaction is quite rare in reality. The disposition of the criminal law norm here is formulated in such a way that in order to bring to criminal liability it is only necessary to establish the fact of a person’s legal inaction. An example of this type of inaction may be failure to provide assistance to a patient (Article 124 of the Criminal Code of the Russian Federation), failure to pay funds for the maintenance of children or disabled parents (Article 157 of the Criminal Code of the Russian Federation), failure to return within the prescribed period to the territory of the Russian Federation objects of artistic, historical and archaeological property of the peoples of the Russian Federation. Federation and foreign countries (Article 190 of the Criminal Code), etc.

Mixed inaction involves committing a crime partly through action and partly through inaction, but ultimately the person behaves passively in relation to the criminal law. A. N. Ignatov believes that “mixed inaction consists of committing inaction, with which the law associates the occurrence of certain consequences.” The Criminal Code of the Russian Federation provides for greater liability for mixed inaction. There are two types of mixed inaction:

a) failure to fulfill an obligation imposed on a person, which is accompanied by an active action that ensures this failure, i.e., in order to be inactive, a person first acts (Articles 198, 199, 339 of the Criminal Code of the Russian Federation);

b) failure to fully fulfill the duties assigned to a person or their improper fulfillment (Articles 261, 293 of the Criminal Code of the Russian Federation).

An example of the first type of mixed criminal inaction is a situation where an individual enters false information into a tax return in order not to pay a legally established tax or to pay it in a smaller amount (Article 198 of the Criminal Code of the Russian Federation).

The second type is particularly characterized by an example where a person lit a fire in the forest in a hot summer, despite the existing ban, resulting in the threat of a forest fire. The subject of the crime did not extinguish the resulting fire, which resulted in the destruction of part of the forest areas. He will be held responsible for careless handling of fire that caused damage to the forest fund (Article 261 of the Criminal Code).

Circumstances eliminating liability for criminal omission

The circumstances that eliminate criminal liability for criminal omission are in many ways similar to the circumstances that exclude liability for a criminal act. This can be explained by a similar social danger and the possible extent of damage caused to social relations both during active and passive criminal actions.

Just like a criminal action, inaction is of a criminal nature when it is volitional on the part of the subject of its commission. Volatility is one of several mandatory signs of a criminal act of any type, including criminal inaction. Therefore, passive behavior that does not contain a volitional character does not entail criminal liability and is not recognized as a crime.

A similar situation, when a person does not express the will to commit a crime, but one way or another “participates” in this crime, can arise under the influence of irresistible physical coercion. Art. 40 of the Criminal Code of the Russian Federation regulates this issue in detail and includes Chapter 8, entitled “Circumstances excluding the criminality of the act.” According to this article, it is not a crime to cause harm to interests protected by criminal law as a result of physical coercion, if, as a result of such coercion, the person could not control his actions (inaction). Thus, a store security guard cannot be held criminally liable for failing to prevent the theft of property entrusted to his protection if, as a result of an attack on him by a group of criminals, he was tied up and immobilized, and was also unable to call anyone for help. . A person who, under the influence of physical coercion, could not control his actions (inaction) is not insane, since there is no medical criterion (chronic mental disorder or other painful mental state). The issue of a person losing the opportunity to direct his actions (inaction) is decided taking into account all the circumstances of the case, properties, skills, abilities and capabilities of the individual. If necessary, a psychological examination should be involved to resolve this issue.

According to Part 2 of Art. 40 of the Criminal Code of the Russian Federation “the issue of criminal liability for causing harm to interests protected by criminal law as a result of mental coercion, as well as as a result of physical coercion, as a result of which the person retained the opportunity to direct his actions, is resolved taking into account the provisions of Article 39 of this Code,” i.e. on grounds of extreme necessity. Mental coercion in this case is recognized as informational influence on a person through the use of a threat of harm, including physical harm, in order to induce a person to commit a socially dangerous action or inaction. However, mental violence with inaction in most cases does not deprive a person of expressing his will or does so only partially. Therefore, in such situations, it is considered only as a circumstance that mitigates criminal punishment, but not as a circumstance that eliminates criminal liability (clause “e” of Part 1 of Article 61 of the Criminal Code). In cases where mental coercion implies a real threat of death to the person himself or his loved ones, such a circumstance excludes the criminality of the act.

In addition, the passive behavior of a person, which was mediated by the influence of force majeure, does not have a criminal legal nature. Force majeure in criminal law is understood as such a state or influence of objective factors of various kinds, due to which a person is deprived of any ability to physically act. There are four such objective factors:

– elemental forces of nature;

- animals;

– painful processes;

- technical issues.

Force majeure excludes criminal liability because a person, due to the influence of a certain objective factor, is deprived of the opportunity to overcome obstacles to the fulfillment of the legal obligation to act.

For example, medicines necessary for the operation of a medical institution were not delivered on time due to the flooding of the bridge during the spring flood; while pursuing a dangerous criminal, a fighting dog attacked a police officer; the doctor was unable to come to the patient due to the fact that he himself was in serious physical condition due to his own illness; Firefighters were unable to extinguish the fire due to a malfunction of the water tower that supplies water to the corresponding area of ​​the settlement.

In cases where obstacles were surmountable, but overcoming them required risking health or life, the issue of criminal liability for refusal to perform certain actions is decided according to the rules of extreme necessity (Article 39 of the Criminal Code of the Russian Federation). This takes into account the nature and degree of risk that could be caused to the person who failed to fulfill his legal obligation, as well as the range of responsibilities of the person and the requirements that are presented to him in a certain situation. The same circumstances may be considered insurmountable for a person who is physically weak and does not have special knowledge, and surmountable for a trained professional in a specific field of activity. For example, a police officer cannot refuse to pursue and apprehend a dangerous armed criminal on the grounds that his life is in danger. Just like a firefighter cannot refuse his duty to save a person from a burning house, even if this process threatens his health and life. However, for any other citizen, a fire, as well as the presence of a weapon in the possession of a dangerous criminal, will be an irresistible force.

In turn, the captain of a ship who did not provide assistance to another ship in distress during a storm, since such assistance created a serious danger to the life and passengers of his ship, will not be held liable under Art. 270 CC. In this case, specific circumstances are taken into account (the presence of a threat to the passengers of one’s ship), which can be classified as circumstances insurmountable for a person.

Conclusion

One of the forms of an act as a sign of the objective side of a crime is criminal inaction, which is much less often a form of criminal behavior and applies to persons who were obliged to act in a particular situation, but did not fulfill their duties. This form has absolutely the same signs of a criminal act as a sign of the objective side of the crime as a criminal act. Therefore, when determining criminal liability for committing criminal inaction, it is quite rational for law enforcement agencies to use general signs of a criminal act, but at the same time it is necessary to rely on certain signs of criminal inaction.

In order for inaction to be recognized as criminal, in addition to the characteristics inherent in any criminal act as a sign of the objective side of the crime, it must also have a number of its own characteristics, which serve as the basis for criminal liability for criminal inaction. These include: the presence of a person’s obligation to act, which may come from certain sources, as well as the person’s ability to act in a specific situation, which, in turn, can also be limited or excluded by a special range of circumstances.

An act in the form of criminal omission may be recognized as non-criminal if in a particular situation there are circumstances that eliminate criminal liability for omission.

Literature:

1. Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) // Rossiyskaya Gazeta. 1993. No. 237.
2. Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ (as amended on June 8, 2020) // Collection of legislation of the Russian Federation. 1996. No. 25. Art. 2954.
3. “Family Code of the Russian Federation” dated December 29, 1995 No. 223-FZ (as amended on February 6, 2020) // Collection of Legislation of the Russian Federation dated 1996. No. 1. Art. 16.
4. Kudryavtsev V.N., Malein N.S. Legal behavior, its subjects and limits // Jurisprudence. 1980. No. 3.
5. Kudryavtsev V.N. Objective side of the crime. M.: Legal. lit., 1960. P. 243.
6. Criminal law course. Volume 1. General part. The doctrine of crime / Ed. N. F. Kuznetsova, I. M. Tyazhkova. M.: IKD "Zertsalo-M", 2002. P 237.
7. Russian criminal law. Lecture course. T.1. General part / Ed. A. V. Naumova. 4th edition. M.: Wolters Kluwer, 2008. P. 91.
8. Timeiko G.V. General doctrine of the objective side of crime. Rostov-on-Don, 1977. pp. 29–57.
9. Trainin A. N. General doctrine of the composition of a crime. M.: Gosyurizdat, 1957. P. 122.
10. Makarov A.V., Problems of determining the object of a socially dangerous act // Russian Judge, 2005. No. 10.
11. Criminal omission. The topic of the dissertation and abstract on the Higher Attestation Commission 12.00.08, candidate of legal sciences Rudavin Alexander Alekseevich. Scientific library of dissertations and abstracts - disserCat. URL: https://www.dissercat.com/content/prestupnoe-bezdeistvie#ixzz57qCzhwW0
12. Rudavin A. A. Concept and criminological characteristics of passive crime: based on materials from Vladimir, Lipetsk, Moscow, Ryazan and Tula // Man: crime and punishment: scientific. magazine / Academy of the Federal Penitentiary Service of Russia, 2013. No. 1. pp. 153–155.
13. Yanova, L. V. Legal assessment and analysis of inaction [Text] / L. V. Yanova // Bulletin of KSU named after. N. A. Nekrasova. Kostroma, 2006. No. 5. pp. 46–48.

Key terms
(automatically generated)
: criminal omission, criminal liability, Criminal Code of the Russian Federation, person, legal obligation, inaction, possibility of a person, action, objective side of the crime, IC of the Russian Federation.

Liability for a crime committed through negligence

The presence of crimes related to negligence occupy a large share among the total number of illegal acts. The absence in such crimes of direct motivation, both to the illegal action itself and to the resulting consequences, creates the basis for the insufficient ability to foresee consequences on the part of the subject.

The very fact of committing such crimes is the cause of defective behavior of individuals, their incorrect attitude towards the actions being carried out and their results.

Criminal liability for crimes of this type is assigned if the subjective side of the committed act falls under the signs of frivolity or negligence. The absence of the required signs of guilt is a reason for refusing to apply criminal liability to persons who have become subjects of illegal actions.

The essence of negligence as a form of guilt

Guilt is the main feature of any crime, relating to its subjective side. According to the norms of the first part of the fifth article of the Criminal Code, a person can be held criminally liable for acts dangerous to society and their consequences, the existence of which is proven to be the citizen’s guilt.

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Guilt is expressed in the mental attitude of the criminal to the signs of an objective nature that are included in the composition of the committed action. It is characterized by the presence of strong-willed and intellectual moments. That is, a person must understand the signs of a particular situation and the possible consequences of his actions, and also consciously direct his physical and mental efforts to achieve his goals.

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The constituent elements of guilt are intellect (consciousness) and will. Together they form the content of the psychological aspect of guilt. The content of these elements in the subject of a specific crime is established by the construction of the elements of each crime separately.

The different correlation between the volitional and intellectual criteria of the psyche of the individual citizen who commits a crime is the basis for identifying the form of guilt (intention and negligence).

Together with the form and content of guilt, its degree is considered. This category is evaluative and contains a quantitative description of the side of guilt. The degree of guilt of a person is an expression of the degree of negative attitude of the person guilty of a given crime to the basic values ​​of society.

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Its definition is determined by the severity of the harm caused by a citizen to society. The degree of guilt is influenced by subjective and objective circumstances characterizing a specific criminal offense. Such circumstances include the goals and motives of the unlawful action, the personality characteristics of the criminal, the reasons for the act, and the conditions for the emergence of intent.

Carelessness as a form of guilt is less common in crimes than intent. Its features are discussed in Article 26 of the Criminal Code.