Murder target
Murder can be defined as an unlawful intentional attack on the life of another person as a private individual, resulting in his death.
There are two types of murder object: generic and specific.
The generic object of murder is the person (according to the title of Section VII of the Criminal Code of the Russian Federation “Crimes against the Person”). In the theory of criminal law, there is an opinion that the concepts of “person” and “person” are different. Thus, N.I. Matuzov, analyzing them, o[1]. “Personality” is a somewhat narrower concept than “person”. This understanding of personality is typical for the socio-philosophical and political-legal (in private law) aspects, when a personality is usually understood as a person who is capable of independently exercising his rights and fulfilling certain responsibilities (including bearing responsibility), and actively interacting with people around him. and the natural environment.
From the position of criminal legal protection of the individual, his rights and freedoms, one should agree with the opinion available in the scientific literature that the concepts of “person” and “person” are equivalent, there are no differences between them and, according to I.P. Petrukhin, the Constitution of the Russian Federation puts an equal sign between these concepts.[2]
There are people who, for whatever reason, cannot independently manage their rights and responsibilities (the mentally ill, the mentally ill, newborns, teenagers, the elderly, etc.). From the point of view of criminal law, the life, rights and freedoms of any person are the object of criminal legal protection.[3] A number of representatives of criminal law science believe that the title of Section VII of the Criminal Code of the Russian Federation should be replaced with “Crimes against humans.”
The specific object of murder is the life and health of another person (according to the title of Chapter 16 of the Criminal Code of the Russian Federation “Crimes against life and health”).
The direct object of murder is the life of a specific person, a specific individual, the one and only.
From the concept of murder given in Part 1 of Article 105 of the Criminal Code of the Russian Federation, namely: “Murder, that is, intentionally causing the death of another person,” it follows that it should be distinguished from suicide, which is characterized by the following features:
c) without the influence of other persons;
d) a personal act of taking one's own life by any means.
According to Russian law, suicide is not a crime and does not entail criminal liability.
Consequently, so-called “complicity” in suicide is also not criminally punishable. However, a caveat should be made. Participation is possible in two forms:
- co-perpetrator, when another person takes a direct part in the deprivation of the life of the victim and
- co-assistance, when another person only assists the victim in taking his own life, playing the role of instigator, accomplice or organizer.
Therefore, the following cases are exceptions:
a) “co-perpetrator” in suicide - the direct participation of another person in the process of taking the life of a suicide, which qualifies as a “simple” murder at the request of the victim (for example, introducing a toxic substance into the victim’s body, knocking out a chair from under the hanged man’s feet, cutting the rope near the person , hanging at a height).
b) “co-assistance” in the suicide of a person who is not aware of the significance of this act, who is not able to adequately respond to the environment, to give an adequate assessment of what is happening to him due to his individual characteristics (mentally ill, mentally ill, young, elderly, etc.), that is recognized as guilty, which, on the basis of the provisions of Part 2 of Article 33 of the Criminal Code of the Russian Federation, should be qualified as an indirect (“mediocre” - through the use of the force of the victim himself) execution of the murder.
The legislation provides for punishment under Art. 110 of the Criminal Code of the Russian Federation “Incitement to suicide” - restriction of freedom for a term of up to three years, or forced labor for a term of up to five years, or imprisonment for the same term.
It is possible to commit a complete murder only by causing harm to a person’s life, since the elements of murder are constructed by the legislator as material. Consequently, it is important to determine the moment of the beginning of life and its end, because before its beginning and after its end it is impossible to commit a completed murder (since one of the elements of the crime is missing - the object). In such situations, we can only talk about attempted murder or another crime.
Life is a temporary state, a period of spontaneous psychophysiological existence. It has an initial and final moment.[4]
The biological essence of man lies in the functioning and development of a living organism of the highest order. “An organism is a historically established integral, constantly changing system, which has its own special structure and development, capable of metabolism with the environment, growth and reproduction”[5].
Birth (the physiological process of the birth of a baby or cub) as the moment of the beginning of life is interpreted differently in the legal literature[6]. There are mainly three possible solutions offered. This is 1) the moment of the onset of labor; 2) the moment of separation of the fetus from the mother and 3) the moment of spontaneous breathing.
When determining the moment of the beginning of life, one should agree with the judgment of those scientists who believe that “The beginning of a person’s life is the moment at least part of the body of a baby with a heartbeat emerges from the mother’s body. From this moment on, the fetus becomes a child and its life is protected by criminal law”[7]. The definition of live birth given by medicine confirms the fact of a person's birth for statistics. For criminal defense purposes, heartbeat and breathing are of obvious and fundamental importance. Of these functions, heartbeat and placental respiration begin before the baby is born. This means that the birth of at least a part of the baby’s body with the indicated functions is the beginning of his life.
In this case, for qualification it does not matter how the newborn is removed from the mother’s body:
- naturally through the birth canal or
- cesarean section (an obstetric operation to remove the fetus through an incision in the abdominal wall and uterus when childbirth through the birth canal is impossible (for example, a narrowed pelvis, severe general illness of the woman), as well as in case of fetal asphyxia).
If a baby was born stillborn, then an attack on him at the moment of the appearance of at least part of his body with the purpose of taking life should be qualified, based on the intent of the perpetrator, as attempted murder.
To resolve the issue of responsibility for a completed attack on a person’s life, the time of death is important.
The death of a person is the irreversible cessation of the vital functions of his body. Currently, in accordance with Part 2 of Article 9 of the Law of the Russian Federation “On Transplantation of Human Organs and (or) Tissues” dated December 22, 1993 (as amended on November 29, 2007), the time of a person’s death is determined by the moment of irreversible death of the entire brain (death brain).[8]
Agony is characterized by the progressive extinction of external signs of the body’s vital activity (consciousness, blood circulation, breathing, motor activity).
In clinical death, pathological changes in all organs and systems are completely reversible.
Brain death is manifested by the development of irreversible changes in the brain, and partially or completely reversible changes in other organs and systems.
Biological death is expressed by postmortem changes in all organs and systems that are irreversible, cadaveric in nature...
The death of a person is declared when the brain or biological death of a person occurs.
Consequently, the moment of death is determined by the moment of the onset of irreversible and total organic changes in the brain, when all functions of all its parts disappear (biological death).
Practice of sentencing for murder
As a rule, for murder the perpetrator always receives actual imprisonment. According to Part 1 of Art. 105 usually give 10-12 years. For committing a crime under Part 2 of Art. 105 of the Criminal Code of the Russian Federation, the terms are more varied. The circumstances of the crime, qualifying signs and their number greatly influence here. In principle, this is justified, since not all qualifying features can be considered equivalent. Thus, the murder of several people always looks more serious in the eyes of society than the murder of one person in the presence of any of the aggravating circumstances. Judicial practice also follows such assessments. The murder of two or more persons is highly likely to result in life imprisonment.
Other aspects:
- Murder cases are not terminated due to reconciliation of the parties, active repentance or other non-rehabilitative grounds. A special (simplified) procedure for consideration is not possible for them.
- An increasing number of cases under Part 2 of Art. 105 of the Criminal Code of the Russian Federation is considered in Russia by a jury. Any accused person has the right to request this type of trial.
- In almost all criminal cases, the suspect (accused) is subject to detention in custody. The probability of such an outcome is 98-99%.
The probability of getting a real sentence for murder is close to 100%. The minimum punishment - 6 years of imprisonment (part 1) and 8 years of imprisonment (part 2) - is given extremely rarely and only if there are very compelling reasons. Mitigating circumstances may influence this, but the circumstances of the crime and the position of the injured party are more important.
The object of the crime, its types. The subject of the criminal attack and the victim of the crime.
The object of a crime is what the person committing the crime encroaches on, what harm is caused or may be caused as a result of his commission.
Criminal law is designed primarily to protect the most important social values from criminal attacks. When regulating the tasks of the Criminal Code of the Russian Federation in Part 1 of Art. 2 simultaneously provides a list of objects of criminal legal protection that may be harmed as a result of committing a crime. The legislator includes the following: 1) human and civil rights and freedoms; 2) property; 3) public order and public safety; 4) environment; 5) the constitutional system of the Russian Federation; 6) peace and security of mankind. This norm does not indicate all objects of criminal legal protection. Their generalized list is supplemented and specified in the titles of sections and chapters of the Special Part of the Criminal Code. In particular, the objects of a crime can be: 1) life, health, freedom, honor and dignity of the individual; 2) sexual integrity and sexual freedom; 3) economic activity not prohibited by law; 4) interests of service in commercial and other organizations; 5) public health and public morality; 6) state power and interests of the civil service; 7) justice; management procedure; 9) the procedure for military service, etc. In the system of social values as objects of criminal law
Types of crime objects can be classified: 1) according to their content; 2) vertically and 3) horizontally.
1. Classification of crime objects according to their content.
Since the legislator included social relations of different nature into the object of criminal legal protection, the objects of the crime also have a different nature or content. Based on this criterion, all social relations taken as the object of a crime can be divided into four groups. These are social relations that ensure the protection of: 1) the individual; 2) society; 3) states; 4) peace and security of mankind. This classification is consistently implemented in the Special Part of the Criminal Code of the Russian Federation. In the crimes provided for in section. VII, the main object can only be the individual, his rights and freedoms, in section. VIII and IX - interests of society, in section. X and XI - interests of the state and, finally, in section. XII - peace and security of mankind.
2. Vertical classification of crime objects.
In scientific and educational literature, it has already become traditional to distinguish general, generic and direct objects of crime. Their totality constitutes a kind of vertical, in which the base is the common object, and the top is the direct object of the crime.
The general object is the totality of all social relations protected by criminal law, which are encroached upon by persons committing any crimes provided for by criminal law. By regulating the tasks of criminal legislation and objects of criminal legal protection, the legislator in Part 1 of Art. 2 of the Criminal Code of the Russian Federation actually described in a generalized form the general object of the crime
The generic object of a crime denotes a group of social relations that are homogeneous in their social nature and are therefore protected by a single set of criminal law norms. It reflects one or another area of social values, benefits, interests that are protected by criminal law. Because of this, the generic object decisively determines the direction of the criminal attack and the nature of the social danger of the crime as a whole. It is no coincidence that the basis for the division of the Special Part of the Criminal Code into sections is the generic object of the crime. The legislator included the individual (Section VII), the economy (Section VIII), public safety and public order (Section IX), state power (Section X), military service (Section XI), peace and security of mankind as generic objects. (Section XII).
A specific object can be defined as a subgroup of social relations that are closest in nature, which are encroached upon by crimes provided for in the same chapter of the Special Part of the Criminal Code of the Russian Federation. If all crimes included in the same section of the Special Part of the Criminal Code have a generic object in common, then the crimes provided for in the chapter of the Special Part of the Criminal Code are characterized by the same object, which we call specific. Thus, the generic object of the crimes reflected in section. VII Special part of the Criminal Code is the individual, and the specific objects should be recognized as life and health (Chapter 16), freedom, honor and dignity of the individual (Chapter 17), sexual integrity and sexual freedom of the individual (Chapter 18), constitutional rights and freedoms person and citizen (Chapter 19), interests of normal development and education of minors (Chapter 20).
The direct object is the object of a separate crime, part of a specific, generic and general object. The immediate object is a specific social relationship that is affected by the crime. Thus, the direct object of murder (Article 105 of the Criminal Code) is the life of another person, intentional infliction of grievous bodily harm (Article 111 of the Criminal Code) is health, theft (Article 158 of the Criminal Code) is property, etc. The peculiarity of the direct object is that the crime is directly directed at it.
3. Classification of crime objects horizontally.
As a rule, a crime causes harm to any one object - life, health, sexual integrity, public order, etc. At the same time, the Criminal Code also provides for multi-object crimes - such crimes, the commission of which involves causing harm to two or more objects that lie on the plane of different generic objects - property and personality (Articles 161 and 162 of the Criminal Code), public order and personality (Article 213 of the Criminal Code), etc. In these cases, there is a need to divide the objects of crime into main, additional and optional objects. In the literature, this division of objects is usually called their horizontal classification, since in this case we are talking about a single-level classification, i.e. at the level of the immediate object.
The main object decisively characterizes the social essence, i.e. the nature and degree of public danger of the crime. It is also of decisive importance in the qualification of a crime: if it is not established, then it is impossible to qualify the act according to the norm of the Special Part of the Criminal Code, for the protection of which this norm was adopted. In addition, in the absence of the main object, the establishment of additional or optional objects loses all meaning. A statement of the absence of the main object in a particular case may indicate either the absence of corpus delicti, or the need to qualify the offense under another norm (article) of the Special Part of the Criminal Code.
