Other base motives: the problem of practical application
The concept of “other base motives” can be found on the pages of the Criminal Code of the Russian Federation only in some articles of its special part.
For example, Articles 153 and 155 of the Criminal Code of the Russian Federation, which provide for such crimes as substituting a child and divulging the secret of adoption, indicate selfish and other base motives as the motive for committing an act. Let's figure out what the motive for committing a crime is. Firstly, it is an optional feature of the subjective side of the crime. This means that for the qualification of most crimes the motive does not matter, but for some crimes it is even indicated in the disposition of the article. Secondly, since the legislator does not give a precise definition of the concept of motive, we can find a large number of different approaches in the doctrine. For example, I.A. Podroykin in his textbook defines the motive of a crime as an internal motivation determined by certain needs that guided the perpetrator when committing a crime. This approach seems to us to fully reveal the essence of the concept of “motive”, since it is similar to the approach from the point of view of psychology, and we are considering the sign of the subjective side of the crime, which is quite closely related to the criminal psychology of the individual.
So, other base motives are still a type of motive for committing a crime, and within the framework of this article we will try to reveal the essence of this term and determine its application in practice.
The term “other base motives” has been used in criminal law for almost a hundred years. In the Criminal Codes of the RSFSR of 1922 and 1960 one could already find this formulation of the motive for certain elements of the crime.
According to paragraph “a” of Art. 142 of the Criminal Code of the RSFSR of 1922, premeditated murder was considered qualified provided it was committed out of self-interest, jealousy and other base motives. This wording was retained in paragraph “a” of Part 1 of Art. 136 of the Criminal Code of the RSFSR 1926 until 1960. However, even then the law did not provide an exhaustive list of base motives or their direct definition. One of the attempts to reveal the essence of such motives was the explanation in the Resolution of the Plenum of the Supreme Court of the RSFSR dated March 16, 1925 (not currently in force) that in relation to Art. 142 of the Criminal Code of the RSFSR of 1922, murder for hooligan motives should be considered a qualified murder for greed, jealousy and other base motives. From this we can conclude that other base motives included motives such as self-interest, jealousy and hooligan motives.
However, at present this resolution is not in effect, there is no legislative definition of other base motives, therefore the classification of a motive as other base motives is of an evaluative nature and is determined by the discretion of the law enforcement officer. Today, to determine the motives related to other base motives, the law enforcement officer should refer to the article-by-article comments, which still contain an approximate list of attributable motives. It states that by base motives the legislator understands revenge, jealousy, hatred, the desire to get a physically healthy child, to raise one’s child in someone else’s prosperous family. However, the commentary is still not a legal act, so the information contained in it, in our opinion, is still subjective.
In our opinion, the absence of an exhaustive list of motives classified as other base motives gives rise to a serious legal problem of qualifying the elements of crimes provided for in Articles 153 and 155 of the Criminal Code of the Russian Federation, both in pre-trial and judicial proceedings. The lack of established motives does not allow such articles to be imputed to the person who fulfilled the objective side of these crimes, which significantly complicates law enforcement.
For example, actions to secretly replace someone else’s child with one’s own are immoral, but not criminally punishable, provided that the parents abandoned their child because his gender did not correspond to their wishes. In this case, the substituted child is not abandoned; there is no selfish motive in their actions, which means that such citizens will not have criminal liability under Article 153. However, in fact, the replacement of the child was committed, which means we are justifying, in fact, criminal behavior.
Thus, in order to improve the practical application of criminal legislation, it is necessary to normatively consolidate the list of other base motives or identify a broader motive for crimes provided for in Articles 153 and 156 of the special part of the Criminal Code of the Russian Federation, since the wording that exists today significantly reduces the number of acts that can be classified under them .
Source
Lowland
ELEMENTS OF A CRIME
1. low-lying
2. without low content
Base motives are considered to be hooligan, selfish, related to the victim’s performance of official activities or the performance of public duty, blood feud, personal interest, etc.
Low goals include: the goal of facilitating or concealing another crime, the goal of using the organs and tissues of the victim, the goal of provoking war or international conflict (Article 65 of the Criminal Code of the Republic of Estonia), etc.
Those motives and goals with which the law associates increased criminal liability should be recognized as base.
Other motives and goals not related to increased criminal liability are considered to have no base content. For example, wanting to fertilize a flowerbed where flowers were growing poorly, a criminal killed a child and poured his blood on the ground. The goal in this case is to grow beautiful flowers, and the motive is the desire for beauty (the so-called Machiavelli ethics).
Motives and goals play a threefold role:
· they serve as circumstances aggravating or mitigating responsibility, for example, committing a crime in order to conceal another crime or committing a crime motivated by compassion (clause “d”, part 1 of article 61 of the Criminal Code)
· they can become mandatory if the legislator introduces them into a specific crime as a necessary condition for criminal liability, for example, forgery of official documents for the purpose of using them (Part 1 of Article 186 of the UKER). The Tallinn City Court heard criminal case No. 99231609287. A. Khaliulina was found guilty under Article 186 of the UKER for ordering a fake passport of a citizen of the Republic of Estonia to be made for herself in order to travel to Finland. The defendant took a photo and gave her photo to the counterfeiters, thereby taking part in the crime. To recognize this act as criminal, it is important to have a purpose to use a fake document.
· they can change qualifications, for example, temporarily leaving a place of service and leaving service for the purpose of desertion Art. 250 and 252 UKER or Art. 337 and 338 UKRF respectively. M. Uybokand was convicted by the Tallinn City Court under paragraph 1 of Article 252 of the UKER (criminal case No. 96044180) for the fact that, as a military serviceman, he left the military unit and returned there only 4 years later. The defendant stated that he left the unit in order to evade defense service. Article 252 UKER presupposes the presence of such intent. If the defendant had left the military unit without the intent to evade service, then his act should have been qualified under Article 250 of the UKER. Such a case happened with D. Koptelkov (criminal case No. 99962000116), who left the unit for the weekend and returned after 3 weeks. The defendant explained his long absence by the lack of money for a ticket; he also said that he did not want to evade service and returned to the unit as soon as he found money for the trip. Because There was no intent to evade service in the act; D. Koptelkov’s behavior was correctly qualified under Part 1 of Article 250 of the UKER.
Error and its meaning
An error in criminal law is a person’s misconception about the legal or factual circumstances of an act or its consequences.
Errors can be legal and factual.
Legal are divided into:
· errors in illegality (a person considered his actions to be criminal, whereas the law does not classify these actions as criminal) - such an error excludes criminal liability,
· errors in qualification (the person misrepresented the legal qualification of the act he committed) – does not affect the form of guilt and does not exclude criminal liability,
· errors in non-criminality (a person does not consider his act to be criminal, although in fact it is criminal) - does not eliminate the guilt of the person, because consciousness of wrongfulness is not included in the content of intent and thereby does not exclude criminal liability,
· errors in punishability (misconception regarding the type and amount of punishment) - does not exclude guilt and criminal liability.
Thus, the criminal liability of a person who is mistaken regarding the legal properties and legal consequences of the act committed occurs in accordance with the assessment of this act not by the subject, but by the legislator, i.e. a legal error does not affect either the form of guilt, or the qualification of the crime, or the amount of the imposed punishment.
Factual errors are divided into:
· for errors in the object (a person thinks that he is causing harm to one object, although in reality another object is suffering damage) - the act is qualified by its focus as an attempt to commit a corresponding crime,
· errors in the nature of an action or inaction (a person incorrectly assesses his actions as socially dangerous, although they are not, for example, a person sold currency that he mistakenly considered to be counterfeit) - do not affect the form of guilt, but responsibility comes for attempted crime,
· error in consequences (a person foresaw consequences that did not occur, or did not foresee consequences that actually occurred) - liability occurs in accordance with the direction of intent as an attempted crime and in accordance with the actual consequences as a careless crime,
· error in causation (the culprit misunderstood the cause-and-effect relationship between his act and the onset of socially dangerous consequences) - if the result coincides with what the culprit wanted, then such an error does not affect the form of guilt,
· Error in aggravating circumstances (a person believes that there are no aggravating circumstances when they exist, or vice versa, a person believes that there are aggravating circumstances that actually do not exist) - liability occurs according to the content and direction of intent.
The subjective side has significant legal significance.
Firstly, as an integral part of the basis of criminal liability, it separates criminal from non-criminal behavior. For example, it is not criminal to cause socially dangerous consequences without guilt, or to commit an act through negligence that is punishable only if there is intent [42] (Article 195 of the Criminal Code of the Republic of Estonia), or an act provided for by a norm of criminal law, but committed without the purpose specified in this norm or for reasons other than those specified in the law (Article 124 of the Criminal Code of the Republic of Estonia). The Tallinn City Court heard criminal case No. 00231801215 on charges of hooliganism against D. Maltseva (Part 1 of Article 195 of the UKER). The defendant sprayed gas in the face of a 15-year-old girl on a trolleybus. It turned out that the girl discussed D. Maltseva’s appearance with her friend, mocked her, thereby insulting the defendant. D. Maltseva made a remark to the girls, to which she received a daring response from the victim. In a fit of rage, D. Maltseva sprayed gas in the girl’s face. In this episode, there is direct intent, without which there cannot be an offense of hooliganism. The court punished Maltseva with arrest.
Secondly, the subjective side makes it possible to distinguish from each other crimes that are similar in objective terms [43] (Article 337 of the Criminal Code of the Russian Federation and Article 338 of the Criminal Code of the Russian Federation).
Thirdly, the actual content of the optional features of the subjective side of the crime, even if they are not specified in the norm of the Special Part of the Criminal Code, determines the degree of public danger of both the crime and the person who committed it, and therefore the nature of responsibility, the amount of punishment[44], taking into account requirements of Articles 37 - 39 UKER and Articles 61 - 65 UKRF.
Thus, the study of the content of the subjective side: the form of guilt, the content and direction of intent, the motives and goals of the crime is important for justifying criminal liability, and for qualifying the crime, and for imposing punishment.
4 Subject
Some authors believe that “The subject of a crime is a person who has committed a crime and is capable, in accordance with the law, of incurring criminal liability for it”[45]. Others believe that “the subject of a crime is the minimum set of characteristics characterizing the person who committed the crime, which is necessary to bring him to criminal responsibility. The absence of at least one of these signs means the absence of a crime”[46]. It seems to the author of the course work that the subject is a set of features of a person, and not the face itself, because if an individual does not possess the necessary characteristics of a subject, he is not a subject, but remains a person who has committed an act with the characteristics of a crime. Thus, the subject of a crime is a set of characteristics necessary to bring a person to criminal responsibility, and an individual is one of the mandatory characteristics of the subject.
Subjects are general and special. A special subject is a subject that has additional, atypical characteristics for all subjects. The concept of a special subject is introduced to limit the circle of persons who can be held criminally liable. For example, according to Art. 250 of the Criminal Code of the Republic of Estonia, for unauthorized absence from a military unit, only a soldier who has taken the oath can be held accountable, and for murder, according to Article 106 of the Criminal Code of the Republic of Estonia, only a woman, or more precisely, only the mother of a newborn child, can be held accountable
Signs of a subject are divided into mandatory and optional.
Required features include:
· individual (person, regardless of citizenship or nationality)
· sanity (Article 11 UKER or Article 19 UKRF),
· reaching the age specified by law (Article 10 UKER or Article 19 UKRF)
Sanity is a person’s ability to realize the actual nature and social danger of his behavior [intellectual factor] and to control it [volitional factor][47].
To declare a person insane, it is sufficient to establish that the person either cannot understand the meaning of his behavior or is not able to control it. The question is debatable whether a drug addict who, in a state of drug starvation (not in a state of intoxication) committed a crime in order to obtain a drug, is subject to criminal liability. He could understand the meaning of his actions, because... was not under the influence of mind-clouding drugs, but his will was broken by physical and mental dependence on the drug. From a practical point of view, a drug addict will undoubtedly be held criminally liable, but some theorists of criminal law, in particular Zdravomyslov, Tkachevsky, believe that due to the lack of will he is insane. The Tallinn City Court heard criminal case No. 00231804292 on charges of S. Petukhov committing a crime under clause 2, part 2, article 143 of the UKER. The defendant and his friend - both drug addicts - decided to buy drugs. Because they didn’t have money, S. Petukhov asked a friend for a mobile phone to call his mother, who could give him money. Having received the phone, the defendant went around the corner to make a call and left, sold the phone and bought drugs with the proceeds. At the trial, the defendant said that he had been addicted to drugs for more than a year and had committed a crime to obtain drugs. He understood that he was deceiving the victim, but he could not help himself - he needed to get money for drugs. This circumstance was taken into account by the court when assigning punishment - because there was no money to buy drugs, there was no money to pay the fine, and the court sentenced him to arrest. According to the author, the defendant cannot be declared sane at the time of committing the crime, because Sanity presupposes the ability to: 1) be aware of one’s actions; 2) manage them. In this case, S. Petukhov’s testimony clearly shows his inability to direct his actions. Therefore, instead of criminal punishment, medical measures should have been applied to the defendant.
The Tallinn City Court is processing criminal case No. 00231804216 on charges of A. Dolgov consuming drugs (heroin) without a doctor’s prescription (Part 1 of Article 2025 of the UKER). Three criminal cases have been opened against the accused under the same article. The court combined them into one proceeding, and just before the hearing of the case, another similar criminal case was received from the police, so the court does not have time to punish A. Dolgov - due to incoming cases and their consolidation into one proceeding, the hearing is constantly postponed. According to the author of the course work, in this case (opiates cause physical and mental dependence), it is impossible to talk about the sanity and guilt of A. Dolgov, because guilt and sanity presuppose the presence of will, and the accused’s will is broken by drug addiction. However, Article 2025 of the UKER provides for criminal liability for drug use without a doctor’s prescription. The author believes that, according to Article 2025 of the UKER, only those who have used drugs for the first time (or those whose dependence on them has not yet developed) should be involved.
The age at which persons are held criminally liable in Estonia is established by Parts 1 and 2 of Article 10 of the Criminal Code: “A person who has reached the age of fifteen at the time of the commission of a crime is subject to criminal liability. Persons who have committed a crime between the ages of thirteen and fifteen years are subject to criminal liability only in cases provided for in Articles 100, 101, 107, 108, 113 - 115, 139, 140 - 142, Part 2 of Article 184_2, Articles 195 and 197 of this Code .”, and in the Russian Federation - parts 1,2,3 of Article 20 of the Criminal Code:
"1. A person who has reached the age of sixteen at the time of committing a crime is subject to criminal liability. 2. Persons who have reached the age of fourteen at the time of committing a crime are subject to criminal liability for murder (Article 105), intentional infliction of grievous bodily harm (Article 111), intentional infliction of moderate harm to health (Article 112), kidnapping (Article 126), rape (Article 131), sexual assault (Article 132), theft (Article 158), robbery (Article 161), robbery (Article 162), extortion (Article 163), unlawful taking of a car or other vehicle without the purpose of theft ( Article 166), intentional destruction or damage to property under aggravating circumstances (part two of Article 167), terrorism (Article 205), hostage taking (Article 206), knowingly false report of an act of terrorism (Article 207), hooliganism under aggravating circumstances (part two and the third of Article 213), vandalism (Article 214), theft or extortion of weapons, ammunition, explosives and explosive devices (Article 226), theft or extortion of narcotic drugs or psychotropic substances (Article 229), rendering vehicles or means of communication unusable (Article 267). 3. If a minor has reached the age specified in parts one or two of this article, but due to mental retardation not associated with a mental disorder, during the commission of a socially dangerous act he could not fully understand the actual nature and social danger of his actions (inaction) or lead them, he is not subject to criminal liability.”
The subject of the crime has significant legal significance:
First, by separating criminal from non-criminal behavior. For example, an act committed by a person with the characteristics of a general subject is not a crime, when a specific norm, as grounds for criminal liability, requires the characteristics of a special subject (for example, failure to provide medical care).
Secondly, the age characteristics of the subject make it possible to establish the characteristics of the criminal liability of minors.
Thirdly, the actual content of the optional features of the subject of the crime, even if they are not specified in the norm of the Special Part of the Criminal Code, determines the degree of public danger of both the crime and the person who committed it, and therefore the nature of responsibility, the amount of punishment[48] taking into account the requirements Art. 37 - 39 UKER and Art. 61 - 64 UKRF. For example, a crime committed by a judge is more dangerous than the same crime committed by a baker.
Thus, the study of the content of the subject: age, mental state, optional signs is important for justifying criminal liability, and for qualifying a crime, and for imposing punishment.
Conclusion
The topic discussed in this course work occupies an important place in the science of criminal law.
Only a person can commit a socially dangerous act. However, in order to bring a particular person to criminal responsibility, he must have a number of signs that characterize him and his behavior, as well as the harm that was caused to society.
The work makes an attempt to provide the most complete and, at the same time, concise disclosure of these features. Particular attention is paid to the objective and subjective aspects of the crime, since, according to the author, they are not always studied by law enforcement agencies with due attention. These problems cause the most difficulties in practice. In this work, the author examined the structure of the crime - object, objective side, subjective side and subject - determined its meaning and delimited the concepts of crime and corpus delicti. I also analyzed the meaning of the signs of the elements of the crime and revealed their meaning.
During the study, the following conclusions were made:
OBJECT – these are social relations, benefits and interests protected by criminal law, towards which a socially dangerous act is directed and to which harm is caused or a real threat of harm is created. The significance of the object in establishing the criminality of the act, determining the legal nature of the crime, the correct qualification of crimes, delimiting crimes from other offenses.
OBJECTIVE SIDE is the external side of a socially dangerous attack. The importance of the objective side as an element of a crime in the basis of criminal liability, the basis of legal qualifications, the delimitation of similar crimes, the delimitation of crimes from other offenses.
THE SUBJECTIVE SIDE is the mental activity of a person at the time of committing a crime. The subjective side is important in justifying criminal liability, justifying the legal qualification of a crime, imposing punishment, distinguishing crimes that are similar in objective terms from each other, and separating criminal behavior from non-criminal behavior.
SUBJECT is the minimum set of characteristics characterizing a person who has committed a crime, necessary to bring him to criminal responsibility. The significance of the subject is determined by the justification of criminal liability, the justification of the classification of the crime, the justification of the amount of punishment, and the argumentation for the release of minors from criminal punishment.
Thus, the elements of a criminal attack on public values, together forming a crime, are the only basis for criminal liability, serve for the correct legal qualification of a criminal act, and are the basis for the court to determine the type and amount of punishment or other measures of a criminal legal nature. An accurate definition of the crime is one of the guarantees of ensuring the rights and freedoms of man and citizen, respecting and strengthening the rule of law and order in a democratic state governed by the rule of law[49].
List of used regulations
1. Constitution of the Republic of Estonia. Electronic version. Status as of November 15, 2000.
2. Criminal Code of the Republic of Estonia. Electronic version. Status as of November 15, 2000.
3. Criminal Procedure Code of the Republic of Estonia. Electronic version. Status as of November 15, 2000.
List of used literature.
4. Ed. B.V. Zdravomyslova. Criminal law of Russia. A common part. Moscow, 1996
5. Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. Moscow, 2000.
6. Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. Moscow, 1996.
7. A. F. Istomin. General part of criminal law. Moscow, 1998
8. Yu.S. Izbachkov. Subject of the crime. Course work. Novgorod, 1999
List of abbreviations used
KER – Constitution of the Republic of Estonia
UKRF – Criminal Code of the Russian Federation
UKER – Criminal Code of the Republic of Estonia
Resume
Käesolevas kursuse töös vaatas autor läbi kuriteo koosseisu elemente - objekti, objektiivset külge, subjektiivset külge ja subjekti - ja selgitas nende tähtsust. Selle jaoks olid analüüsitud kuriteo koosseisu elementide tunnused ja nende tähtsus.
Author tegi järelduse, et kriminaalvastutusele võetakse ainult füüsilist isikut (inimest),kuriteo koosseis on isiku kriminaalvastutusele võtmise ainus alus.Kuriteo koosseis omab tähtsust kuriteo õige juriidilise kvalifikatsiooni jaoks ja on al useks kriminaalkaristuse või muu kriminaal-õigusliku mõjutusvahendi määramisel. Kuriteo koosseisu täpne määratlemine on üks garantiidest inimese ja kodaniku õiguste ja vabaduste tagamise ja õiguskorra ja seaduslikkuse järgimise demokraatilises õiguslikus riigis.
In the present work the author has carefully examined each of the elements of criminal offense – the object, the criminal act, the subjective side, the offender & cleared up their relevance. For this purpose were analyzed traits & meanings of the elements of criminal offense. The author has drawn a conclusion that bringing of criminal charges is possible only against a natural person (human)& that criminal offense is the only ground of bringing of criminal charges. Criminal offense has relevance to legal assessment of criminal offense & it is assumed as the only reason for criminal punishment or other penal sanctions. The determination of the necessary elements of the criminal offense is one of the guarantees of human's & citizen's rights & freedoms, law and order & legality in the democratic legal state.
[1] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. Moscow, 1996. Pages 67-71.
Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. Moscow, 2000. Pages 48-57.
Zvonov G.V. Lectures on criminal law.
[2] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Pp. 49.
[3] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. P. 68.
[4] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Pp. 56.
[5] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Pp. 82.
[6] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Pp. 106.
[7] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. Page 88.
[8] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. Page 86.
[9] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 112.
[10] ibidem
[11] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 110.
[12] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 111.
[13] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 122.
[14] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. P. 90.
[15] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 123.
[16] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 130.
[17] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 130.
[18] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. P. 94.
[19] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. P. 95.
[20] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 132.
[21] Lectures on criminal law by prof. P.A. Beilinson.
[22] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 138.
[23] Ed. V.N. Kudryavtsev and A.V. Naumov. Textbook of criminal law. A common part. M., 1996. Page 99.
[24] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 142.
[25] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 144.
[26] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 151.
[27] ibidem.
[28] ibid. Page 150.
[29] Martial law can also be declared by the president (Clause 18, Article 78 CER)
[30] The Constitution of Estonia does not establish a procedure for lifting a state of emergency.
[31] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 126.
[32] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 161.
[33] A.F. Istomin. General part of criminal law. Moscow, 1998, p77.
[34] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 162.
[35] A.F. Istomin. General part of criminal law. Moscow, 1998, p79.
[36]A. F. Istomin. General part of criminal law. Moscow, 1998, p. 80.
[37] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 168.
[38] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 169.
[39] A.F. Istomin. General part of criminal law. Moscow, 1998, p. 80.
[40] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 182.
[41] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 187.
[42] B.V. Zdravomyslov. Criminal law of Russia. General part. Moscow, 1996, p. 162.
[43] Ibid.
[44] Ibid.
[45] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 195.
[46] Pavlov V.G. The subject of a crime in the criminal legislation of the RSFSR (1917-1996) // Jurisprudence, 1998, No. 1, p. 106, refers to the author of the course work “The Subject of a Crime” Yu.S. Izbachkov
[47] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 200.
[48] Ibid.
[49] Ed. B.V. Zdravomyslova. Criminal law of the Russian Federation. A common part. M., 2000. Page 82.
ELEMENTS OF A CRIME
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The purpose of a crime is a mental model of the future result that a person strives to achieve when committing a crime. The purpose of a crime arises on the basis of a criminal motive, and together the motive and purpose form the basis on which guilt is born as a certain intellectual and volitional activity of the subject associated with the commission of a crime and occurring at the time of its commission.
Emotional (sensual) components are a state of mind on the basis, background and accompaniment of which the intellectual and volitional aspects of the psyche of the person committing a socially dangerous act are manifested.
OOP crimes are covered by motives and purposes only in intentional crimes. In the case of causing harm through negligence, the motives and goals of a person’s behavior do not cover the consequences.
The motives and goals of a crime are always specific and, as a rule, are formulated in the dispositions of the norms of the Special Part of the Criminal Code.
Classification of motives and goals based on their moral and legal assessment:
1. Low - these are those motives and goals with which the Criminal Code associates increased criminal liability, either assessing them as circumstances that aggravate the punishment, or considering them in specific crimes as qualifying features.
Base motives are motives of selfish, hooliganism, national, racial, religious hatred or enmity or blood feud, associated with the performance of official activities by the victim or the performance of public duty, revenge for the lawful actions of other persons.
Low goals - the goal of facilitating or concealing another crime, the goal of using the organs or tissues of the victim, the goal of involving a minor in the commission of a crime or other antisocial actions, the goal of ending the state. or watered the activities of the victim, the goal of overthrowing or forcibly changing the constitutional system of the Russian Federation, the goal of undermining economic security and defense capability.
Base motives are used in the Criminal Code only twice (Article 153 and Article 155) - the punishability of replacing a child and divulging the secret of adoption is associated with the commission of these acts for selfish or other base motives.
2. Having no base content - motives and goals with which KM does not connect the strengthening angle. responsibility neither by creating special norms with more stringent sanctions, nor by giving them the meaning of qualification. signs, nor by recognizing them as circumstances aggravating the punishment (jealousy, revenge, careerism, personal hostility, etc.).
3. Useful nature - motives and goals that can serve as circumstances mitigating punishment (for example, the motive of compassion for the victim, the goal of suppressing a crime or detaining the person who committed the crime).
The triple meaning of the characteristics of the subject. parties to the crime:
1. motive and purpose may become obligatory. signs, if the legislator introduces them into the composition of a specific government as necessary. conditions angle. answer (the motive of selfish or other personal interest is a mandatory sign of the subjective side of abuse of power (Article 285), and the purpose of taking possession of someone else’s property is a mandatory sign of piracy (Article 227));
2. motive and purpose can change qualifications, i.e. serve as signs with the help of which the corpus delicti of the same crime with aggravating circumstances is formed (for example, kidnapping a person for mercenary motives (clause “h”, part 2 of article 126);
3. motive and purpose can serve as circumstances that mitigate or aggravate the punishment, if they are not indicated by the legislator when describing the main elements of the crime and are not provided as qualifying characteristics (for example, crimes based on national, racial, religious hatred or enmity (clause "e" part 1 of article 63), crimes motivated by compassion (clause "e" part 1 of article 61) is considered as a mitigating circumstance).
37. Error and its criminal legal significance.
An error is a person’s incorrect understanding of the actual legal or factual nature of his action or inaction and its consequences.
Kinds:
1. Legal error is the subject’s incorrect understanding of the criminality or non-criminal nature of the act he has committed and its consequences, the criminal legal classification of the act, as well as the type and amount of punishment that is assigned for committing this act.
1) mistake in the criminality of the act; a mistake in the criminality of the act, in turn, can have two varieties. Firstly, a person may think that he is committing a crime, but in reality this act is not such. This is the so-called “imaginary” crime. Criminal liability in such cases is excluded, since there is no crime without an indication of it in the law. The committed act cannot cause harm or create a threat of harm to public relations protected by criminal law. Such an act does not have the characteristics of a crime, and therefore cannot be the basis for criminal liability. Secondly, a person, committing a socially dangerous act, may mistakenly believe that it is not provided for by criminal law, and therefore is not a crime. Despite the conscientiousness of the misconception regarding the criminal wrongfulness of the act, a person is subject to criminal liability, since ignorance of the law does not exempt from it.
2) an error in the qualification of the act (does not affect the MA);
3) error in the type and amount of punishment for the crime committed:
2. Factual error - a person’s incorrect understanding of the actual circumstances relating to the object and objective side of the crime he committed.
1) an error in the object of the attack - the CR is assigned for the object on which the offender attempted. (I wanted to steal a machine gun, but stole a pistol - criminal offense for attempted theft of a machine gun)
2) the subject of the crime and the identity of the victim (does not affect the MA)
3) in the nature of the act, in the development of the causal relationship (may affect),
4) an error in the means of committing a crime (may affect)
Types of factual error:
An error in the object of encroachment is a person’s incorrect understanding of social and legal issues. essence of the object of encroachment:
substitution of the object of the attack - damage is caused to another object, different from the one covered by the intent of the perpetrator (theft of medicines instead of drugs);
ignorance of the circumstances due to which social change occurs. and legal assessment of the object in the US (pregnancy of the victim in a murder).
The meaning of the error in the object of the attack:
1) when the object of the assault is replaced, the crime, which in its actual content was completed, is assessed as an attempt on the object intended by the perpetrator;
2) in the absence of knowledge of the circumstances, the error affects the qualification of crimes in two ways: if the perpetrator does not know about the existence of such circumstances, when in reality they exist, then the crime is qualified as committed without aggravating circumstances, but if he proceeds from an erroneous assumption about the presence of a corresponding aggravating circumstance, then the act must be qualified as an attempt on crime with this aggravating circumstance.
It is necessary to distinguish from a mistake in the object of the attack an error in the subject of the attack and in the identity of the victim:
mistake in the subject of the attack - the damage is caused precisely to the intended object, although it is not the intended object of the criminal that is directly affected, but another object (having received information that no one lives in the dacha owned by A., S. mistakenly enters the neighboring dacha owned by M., and steals valuable things from there);
mistake in the identity of the victim - the perpetrator, encroaching on a certain person, mistakenly takes another person for him, against whom he commits an attack;
It is the intended object that suffers; the error does not have any effect on either the qualifications of the prest. or the ug. answer, unless, of course, with the replacement of the identity of the victim, the object of the crime is not replaced (the murder of a private person instead of a state or public figure intended as a victim in order to stop his state or gender activities (Article .277).
An error in the nature of action or inaction can be of two types:
a person mistakenly assesses his actions (inactions) as unlawful (the sale of foreign currency, which the culprit mistakenly considers counterfeit, constitutes an attempt to sell counterfeit money (Article 30, Article 186);
a person mistakenly assesses his actions (inactions) as lawful, without realizing their society. danger (the person is convinced of the authenticity of the money he is paying, but it turns out to be counterfeit).
The meaning of an error in the nature of an action or inaction:
1) if you mistakenly assess your actions (inaction) as unlawful, such an error does not affect the form of guilt, and the act remains intentional, but the answer comes not for a completed crime, but for an attempt on it, because the criminal intent was not realized;
2) in the event of an erroneous assessment of one’s actions (inaction) as lawful, such an error eliminates intent, and if an act is recognized as criminal only if it was committed intentionally, then the CR is also excluded.
An error regarding OOP may relate to either a qualitative or quantitative characteristic of this objective characteristic:
an error regarding the character of OOP is an error in their qualitative characteristics, and may consist of: foreseeing such consequences that actually occurred, or not foreseeing such consequences that actually occurred;
an error regarding the severity of hazards is a misconception in their quantitative characteristics, while the actual consequences caused may turn out to be either more or less severe than those expected.
Error meaning regarding OOP:
1) an error regarding the nature of OOP excludes liability for intent. infliction of actual consequences, but may entail liability for their infliction through negligence, if such is provided for in the Law; an act that entailed consequences other than those covered by the intent of the subject is qualified as an attempt to cause consequences foreseen by the perpetrator, and, in addition, as careless infliction of less serious consequences that actually occurred; 2) an error regarding the severity of the OOP: if a less severe OOP occurs, then it does not affect either the form of guilt or the qualification of the crime; if a more serious OOP has occurred, then the person must be held accountable in accordance with the direction of intent and the act must be qualified as the intentional infliction (or attempt to inflict) the intended consequences, and, in addition, as the careless infliction of more serious consequences.
An error in the development of a causal relationship is a wrong understanding by the perpetrator of the cause-and-effect relationship between his OOD and the onset of OOP.
The meaning of error in the development of causality:
1) if, as a result of OOD, the harmful result occurs that was covered by the intention of the perpetrator, then the error in the causal connection does not affect the form of guilt;
2) sometimes an error in a causal relationship excludes intent, but justifies liability for carelessly causing consequences, if the subject should have and could have foreseen the true development of the causal relationship;
3) in cases where a consequence, covered by intent, actually occurs, but is the result not of the actions with which the perpetrator intended to cause them, but of his other actions, an error in the development of a causal connection entails a change in the classification of the act.
An error in aggravating circumstances lies in the erroneous idea of the absence of such circumstances when they exist, or of their presence when in fact they are absent.
The meaning of an error in circumstances aggravating liability is determined by the content and direction of intent. If the perpetrator considers his act to have been committed without aggravating circumstances, then responsibility must arise for the elements of this crime. Conversely, if the perpetrator was convinced of the presence of an aggravating circumstance, which in fact was absent, the act should be qualified as an attempted crime committed under aggravating circumstances.
