- Concept and system of the Special Part of Criminal Law
- Qualification of crimes
This chapter formulates the concepts of the Special Part of the Criminal Code of the Russian Federation and its system, as well as the qualification of crimes, discusses the structure of the Special Part of the Criminal Code of the Russian Federation, its meaning, stages, principles of qualification (objectivity, accuracy and completeness), types of qualification, corpus delicti as a legislative model of qualification , special rules of qualification, as well as competition and conflict of criminal law norms, the socio-legal, criminological and moral significance of qualification is determined.
The concept of the Special Part of Criminal Law, its meaning and system.
A special part of Criminal Law is a set of criminal law norms that establish the range of socially dangerous acts that are crimes;
specific types and measures of punishment applied for their commission. The Special Part is inextricably linked with the General Part and constitutes a unified criminal legislation:
1) The special part contains not only a list of ingredients, but also contains rules defining the grounds for exemption from liability and punishment (for example, note to Article 126 of the Criminal Code, Articles 204-206).
2) A special part contains explanations of important criminal law concepts (for example, Art. 158 - the concept of “theft”, Art. 139 - the concept of “dwelling”).
3) The Special Part reveals individual elements of crimes (for example, the note to Article 158 “large, especially large, significant size”, Article 199, Article 293 of the Criminal Code).
4) The Special Part reflects changes in the social, political, and economic development of society.
The meaning of the Special Part of the UE. The special part exhaustively defines and describes socially dangerous acts that are crimes. If the act is not provided for, then there is no crime.
System of the Special Part of the UE. The system is a scientifically based arrangement of norms that determine responsibility for certain crimes in certain groups (sections and chapters) depending on the generic (species) object.
The special part begins with Section VII “Crime against the person” of the chapter:
— crimes against life and health;
- against freedom, honor and dignity;
- against constitutional rights and personal freedoms, etc.).
Section VIII “Crimes in the economic sphere” of the chapter:
— crimes in the sphere of property;
— in the field of economic activity;
- against the interests of service in commercial and other organizations
Section IX “Crimes against public safety and public order” of the chapter:
— crimes against public safety;
— against public health, public morality;
— crimes in the field of computer information.
Section X “Crimes against state power” of the chapter:
— crimes against the foundations of the constitutional order and state security;
- against justice, the order of government.
Section XI “Crimes against military service” chapter:
- crimes against military service.
Section XII “Crimes against the peace and security of mankind” chapter:
- crimes against the peace and security of mankind.
The structure of the Special Part of Criminal Law coincides with the course system of the Special Part of Criminal Law.
Crimes against constitutional rights and freedoms of man and citizen
Crimes against constitutional rights and freedoms of man and citizen
(Chapter 19 of the Criminal Code)*.
* At the same time, the criminal legal protection of the constitutional rights and freedoms of man and citizen is carried out not only by the norms of this chapter, but also by the norms of other chapters of the Criminal Code. Thus, the right to life (Article 20 of the Constitution of the Russian Federation) is protected by norms establishing liability for attacks on life, Art. 105–108 CC.
Article 2 of the Constitution of the Russian Federation establishes: “A person, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.” Chapter 19 of the Criminal Code establishes liability for violation of fundamental rights and freedoms set out in Chapter. 2 of the Constitution of the Russian Federation*.
* The concept and types of crimes are discussed in detail below.
In 1996, the Criminal Code of the Russian Federation introduced a new independent chapter - “Crimes against family and minors”
(Chapter 20 of the Criminal Code), which combined crimes against the personality of a minor, as well as family relationships. This chapter includes provisions on criminal liability for: involvement of a minor in the commission of a crime (Article 150); involvement of a minor in committing antisocial acts (Article 151); trafficking in minors (Article 152); substitution of a child (Article 153); illegal adoption (art. 154); disclosure of the secret of adoption (Article 155); failure to fulfill obligations to raise a minor (Article 156); malicious evasion of payment of funds for the maintenance of children or disabled parents (Article 157).
This chapter was absent in the Criminal Code of the RSFSR of 1960, although some of the norms now included in it were present in various chapters of the latter. The allocation of a separate chapter against family and minors, as well as its inclusion in the section “Crimes against the person”, which opens the Special Part of the Criminal Code, emphasizes the priority nature of the criminal legal fight against violations of individual rights. This approach is consistent with the provisions of Art. 38 of the Constitution of the Russian Federation, which establishes state protection of motherhood, childhood, family, as well as generally recognized norms of international law and international treaties of Russia (see, for example, the UN Convention on the Rights of the Child).
Classification of crimes and its significance.
Qualification of crimes is the establishment and legal consolidation, on the basis of criminal procedural norms, of an exact correspondence between the signs of a socially dangerous act committed and the signs of a crime provided for in criminal law.
Qualification is not a one-time act, but a consistent logical process.
Qualification prerequisites are:
1. Complete, accurate establishment of the factual circumstances of the case (inspection of the scene of the incident);
2. Professional study of these circumstances;
3. Determination of the approximate range of norms under which the committed act may fall;
4. Comparison of the signs of a crime named in the dispositions of the norms with the signs of the committed act;
5. Distinction between related crimes;
6. Drawing conclusions and consolidating them in procedural documents in the form of final qualifications:
1) indication of the article, part, clause of the article of the Special Part,
2) indication of the article of the General Part;
Qualification can be recorded:
1. Resolution to bring the person who committed the crime as an accused;
2. In a verdict of guilty or acquittal;
3. In the resolution to terminate the criminal case.
Types of qualifications:
1. Official qualification is a qualification given by specially authorized employees of government bodies (investigators, prosecutors, judges);
2. Informal qualification – can be carried out by lawyers and other persons.
Meaning of qualification:
1. Qualification according to a certain criminal law means that a person’s actions contain signs of any crime, i.e. its illegality;
2. Accurate, correct qualification indicates the correct application of the law and the imposition of a fair punishment on a person;
3. Qualification entails criminal legal consequences: this manifests itself in the form of a correctional institution, the type of recidivism, the rules for sentencing, release of liability, punishment; expiration date of a criminal record, etc.
4. Qualification also affects the criminal procedural consequences (form of investigation (inquiry or preliminary investigation), timing, selection of a preventive measure, jurisdiction);
5. Qualification influences the data of judicial statistics, and through it - the conclusions of criminologists, and through it - the conclusions about the state of the dynamics of types of crimes.
The scientific basis of qualification was developed by the following scientists V. N. Kudryavtsev; Kurinov V.P.; B. A. Volkov, Malykhin.
When qualifying, competition between criminal law norms is possible. Competition is cases when the act falls under several criminal law norms, but only one of them is subject to application:
1. Competition is different from aggregation of crimes. In both cases, the act contains signs of several norms, but in the aggregate several crimes were committed and not one of the norms fully covers the act, therefore qualification under several articles is necessary. In competition, one crime has been committed and its classification according to one of the norms covers it completely.
2. The difference between competition and the delimitation of adjacent compositions. Adjacent compositions have several common characteristics, but they differ in some other characteristics, i.e. in one of the adjacent compositions there is a feature that is absent in the other composition and vice versa. In competition, several norms contain signs of a committed act.
Types of competition:
1. Competition between general and special norms (for example, Article 286 - abuse of power and Article 302 - coercion to testify) - in this case, a special norm is subject to application, since it largely reflects the peculiarity of qualifications (private case of qualification);
2. Competition between the part and the whole (for example, Art. 109 - causing death by negligence and Art. 167 part 2 - intentional destruction, resulting through negligence in the death of a person or other grave consequences) - in this case, the norm that covers in the greatest completeness all the factual signs of the committed act; it has an advantage over the rule that provides for only part of what was committed by the perpetrator.
Title VII (Ch. 16–20) – crimes against the person
Section VII
(chap. 16–20)
– crimes against the person.
These crimes encroach on such inalienable individual rights as life and health (Chapter 16).
To attacks on life
The new Criminal Code includes: a) murder (Article 105); b) murder by a mother of a newborn child (Article 106); c) murder in a state of passion (Article 107); d) murder committed when the limits of necessary defense were exceeded or when the measures necessary to detain the person who committed the crime were exceeded (Article 108); e) causing death by negligence (Article 109); f) incitement to suicide (Article 110).
To attacks on health
the law includes: intentional infliction of grievous bodily harm (Article 111); intentional infliction of moderate harm to health (Article 112); causing grievous or moderate harm to health in a state of passion (Article 113); infliction of grievous or moderate harm to health by exceeding the necessary defense or by exceeding the measures necessary to detain the person who committed the crime (Article 114); intentional infliction of minor harm to health (Article 115); beatings (Article 116); torture (v. 117); causing grievous or moderate harm to health through negligence (Article 118); threat of murder or causing grievous bodily harm (Article 119); coercion to remove human organs or tissues for transplantation (Article 120); infection with a venereal disease (Article 121); HIV infection (Article 122); illegal abortion (Article 123); failure to provide assistance to a patient (Article 124); leaving in danger (Article 125).
Chapter 17 combines crimes against freedom, honor and dignity of the individual.
The Constitution of the Russian Federation establishes the rights and freedoms of man and citizen. Part 1 art. 22 of the Constitution of the Russian Federation provides that every citizen has the right to freedom and personal integrity,
and part 1 art.
23 of the Constitution of the Russian Federation enshrines the human right to privacy , personal and family secrets,
protection of one’s
honor and good name.
Personal dignity is protected by the state.
In ch. 17 of the Criminal Code there are a number of articles that establish criminal liability for attacks on freedom, honor and dignity of the individual. Thus, an infringement on personal freedom is provided for in Art. 126 (kidnapping), 127 (unlawful imprisonment), 128 (illegal placement in a psychiatric hospital); for honor and dignity - Art. 129 (libel) and 130 (insult).
Crimes against sexual integrity and sexual freedom of the individual
are combined in ch. 18 of the Criminal Code. Sexual crimes are deliberate actions against sexual integrity and sexual freedom protected by criminal law, as well as the moral and physical development of minors and causing harm to specific individuals.
The concept of the Special Part of Criminal Law, its meaning and system.
A special part of Criminal Law is a set of criminal law norms that establish the range of socially dangerous acts that are crimes; specific types and measures of punishment applied for their commission.
The Special Part is inextricably linked with the General Part and constitutes a unified criminal legislation:
1) The special part contains not only a list of ingredients, but also contains rules defining the grounds for exemption from liability and punishment (for example, note to Article 126 of the Criminal Code, Articles 204-206).
2) A special part contains explanations of important criminal law concepts (for example, Art. 158 - the concept of “theft”, Art. 139 - the concept of “dwelling”).
3) The Special Part reveals individual elements of crimes (for example, the note to Article 158 “large, especially large, significant size”, Article 199, Article 293 of the Criminal Code).
4) The Special Part reflects changes in the social, political, and economic development of society.
The meaning of the Special Part of the UE. The special part exhaustively defines and describes socially dangerous acts that are crimes. If the act is not provided for, then there is no crime.
System of the Special Part of the UE. The system is a scientifically based arrangement of norms that determine responsibility for certain crimes in certain groups (sections and chapters) depending on the generic (species) object.
The special part begins with Section VII “Crime against the person” of the chapter:
— crimes against life and health;
- against freedom, honor and dignity;
- against constitutional rights and personal freedoms, etc.).
Section VIII “Crimes in the economic sphere” of the chapter:
— crimes in the sphere of property;
— in the field of economic activity;
- against the interests of service in commercial and other organizations
Section IX “Crimes against public safety and public order” of the chapter:
— crimes against public safety;
— against public health, public morality;
— crimes in the field of computer information.
Section X “Crimes against state power” of the chapter:
— crimes against the foundations of the constitutional order and state security;
- against justice, the order of government.
Section XI “Crimes against military service” chapter:
- crimes against military service.
Section XII “Crimes against the peace and security of mankind” chapter:
- crimes against the peace and security of mankind.
The structure of the Special Part of Criminal Law coincides with the course system of the Special Part of Criminal Law.
Crimes against state power
Section X
(Chapter 29-32) The Criminal Code
“Crimes against state power”
includes: crimes against the foundations of the constitutional order and security of the state (Chapter 29); crimes against state power, the interests of civil service and service in local governments (Chapter 30); crimes against justice (chapter 31); crimes against the order of government (chapter 32).
The named crimes encroach on the system of social relations that ensure the legitimacy and normal functioning of state power in the Russian Federation, i.e. social relations that ensure the protection of the foundations of the constitutional and state system, the normal activities of government bodies belonging to various branches of government, as well as the interests of public service and service in local governments.
The most dangerous of the crimes included in this section are crimes against the foundations of the constitutional order and state security
(Chapter 29), since they affect the foundations of the social, political and state system of the Russian Federation, its sovereignty, external and internal security.
The group of crimes under consideration can be classified into the following types:
crimes against the external security of the Russian Federation:
high treason (Article 275), espionage (Article 276);
attacks on the political system of the Russian Federation:
encroachment on the life of a statesman or public figure (Article 277), violent seizure of power or forcible retention of power (Article 278), armed rebellion (Article 279), public calls for a violent change in the constitutional system of the Russian Federation (Article 280);
encroachment on the economic security and defense capability of the Russian Federation
- sabotage (Article 281);
encroachment on the constitutional principle of prohibiting propaganda or agitation that incites social, racial, national or religious hatred or enmity
(Article 282);
crimes encroaching on the safety of state secrets
(vv. 283, 284).
Crimes against state power, interests of civil service and service in local government bodies
(Chapter 30) pose an increased danger due to the fact that these crimes are committed by government officials themselves.
The peculiarity of this group of crimes is expressed in the following characteristics: they are committed either with the use of official powers,
or
due to the official position held by the offender and contrary to the interests of the service
- abuse of official powers (Article 285), taking a bribe (Article 290), official forgery (Article 292), etc.
Crimes against justice
(Chapter 31) include intentional criminal acts that impinge on the normal functioning of the justice system. In this case, justice is understood in the broad sense of the word, i.e. as the activities of special bodies with power functions, which, on behalf of and on behalf of the state, enter into legal relations with citizens and legal entities within the framework of criminal or civil proceedings. These include courts of all levels, prosecutors, investigations, inquiries, operational investigative structures of the Ministry of Internal Affairs, FSB, and tax police.
Depending on the subject
There are three types of crimes:
1) crimes committed by justice workers
when performing the functions assigned to them: bringing a knowingly innocent person to criminal liability (Article 299); unlawful arrest, detention or detention (Article 301); illegal exemption from criminal liability (Article 300);
2) crimes committed by persons against whom measures of legal coercion were applied:
escape from places of imprisonment, from arrest or from custody (Article 313) and evasion from serving imprisonment (Article 314);
3) crimes committed by persons obliged by law or by virtue of civic duty to promote justice and not interfere with its implementation:
obstruction of justice and preliminary investigation (Article 294); knowingly false testimony, expert opinion or incorrect translation (Article 307), etc.
Crimes combined in ch. 32 of the Criminal Code, encroach on specific types of public administration:
on the inviolability of the State border of the Russian Federation (Articles 322,323); on the procedure for circulation of official documents and state awards (Articles 324–327); on the procedure for conscription into military and alternative civilian service (Article 328); on the authority of the State Emblem and State Flag of the Russian Federation (Article 329), etc.
