The Criminal Code of the Russian Federation qualitatively regulates the legislative life of its citizens. The criminal activities of lawbreakers are prevented and punished.
Those citizens are exempt from criminal liability if, as a result of their direct participation, random incidents occurred that caused harm to other persons.
Practice shows that approaches to liability for acts committed due to negligence are always ambiguous.
In accordance with the law, criminal negligence consists of a person’s unforeseen possibility of the consequences of his act being dangerous to society. But with care and forethought, they could have been foreseen.
Criminal liability for crimes committed through negligence arises due to the fact that the offender should not only have foreseen the occurrence of consequences dangerous to society, but could also have prevented them.
The intellectual element of negligence is characterized by the fact that the culprit is not aware of the social danger of the act committed and cannot foresee the possibility of harmful consequences. At the same time, the will of a person in case of criminal negligence is not aimed at achieving any criminally significant consequences.
Types of negligence
In accordance with Article 26 of the Criminal Code of the Russian Federation, a crime committed through negligence is an act committed through frivolity or negligence.
Negligence is the only type of guilt in which the person does not foresee socially dangerous consequences, either as inevitable or as actually possible.
But this does not mean the absence of a psychological attitude towards the onset of such consequences, but represents a special form of such an attitude. Unforeseen dangerous consequences indicate a person’s disregard for the interests of other citizens and the requirements of the law.
The essence of a crime of negligence is that a citizen has a real opportunity to foresee consequences dangerous to society, does not show the necessary care and forethought to prevent these consequences, and does not turn a real possibility into reality.
The concept of criminal frivolity means that the offender foresees the possibility of consequences dangerous to society, does not want them to occur, and without sufficient grounds expects to prevent them. But at the same time, the citizen does not regard his actions as dangerous to society, although he is aware that he is violating certain precautionary rights.
The possibility of dangerous consequences arising from criminal frivolity is considered abstract, since a person is trying to prevent them, and the expectation of prevention has real grounds.
The difference between frivolity and indirect intent
SUBJECTIVE SIDE OF CRIME
The concept and meaning of the objective side of the crime
The following definition can be given to the subjective side of a crime. The subjective side of a crime is the internal essence of a crime, consisting in mental processes that generate and direct the behavior of a person at the time of committing a socially dangerous act.
The subjective side of a crime is one of the four mandatory elements of a crime, in addition to the object, subject and objective side. A correct assessment of the subjective side is possible only on the basis of signs that are externally manifested, reflected in external circumstances, for example, in: signs of the act committed, the nature and extent of the consequences that occurred, the consequences that occurred, the situation of the incident, etc. This is the connection between the subjective side and the other elements of the crime.
Crime, like any human act, has a psychological content, i.e. characterized by certain mental processes occurring in the human mind. In any practical activity, including crime, the criminal is guided by his consciousness, in which various mental processes take place. The totality of mental processes occurring in a person’s mind when committing a crime constitutes the content of the subjective side of the crime. It reflects the mental (subjective) attitude of a person to the socially dangerous act he has committed.
The meaning of the subjective side is as follows:
1) Allows you to establish a subjective basis for criminal liability.
2) Based on the subjective side of the crime, criminal behavior is distinguished from non-criminal behavior.
3) Signs of the subjective side of the crime can play the role of both mitigating and aggravating circumstances.
4) The subjective side is important for the correct qualification of the crime.
Signs of the subjective side of the crime
Signs of the subjective side include guilt , motive , purpose and emotion . The concept of “subjective side of a crime” is generic in relation to guilt, motive, etc. Each of these features has its own characteristics, none of them can be considered as an integral part of another element, none of them can replace another element.
Thus, the subjective side of the crime is not reducible to the concept of guilt.
Guilt is the main feature, motive, goals and emotions are optional . Let me explain. Guilt in any crime is a mandatory element, since without guilt there is no criminal liability (and, as you know, it is not allowed to hold a person criminally liable for innocent causing of harm). Motive, purpose and emotions have the following criminal legal meaning:
1) Being included in the disposition of any article, they become mandatory elements of a crime.
2) They can play the role of a mitigating or aggravating circumstance.
3) They can turn the main team into a qualifier.
In practice, optional signs are still taken into account, since they are key factors in understanding a person’s subjective attitude to the crime.
Concept and forms of guilt
To find a person guilty, it is not enough to establish that this person committed the act accused of him, since objective imputation is not allowed.
There is no concept of “guilt” as such in the Criminal Code. In the doctrine, guilt refers to the mental attitude of the subject to the crime being committed and its consequences, expressed in the form of intent or negligence . The content of guilt is the mental attitude of a person to the act he has committed. In Part 1 of Art. 24 of the Criminal Code of the Russian Federation specifies two forms of guilt - intent and negligence. The content of the intentional form is recognized as direct and indirect intent. The content of a careless form of guilt is frivolity and negligence.
A form of guilt is a combination of intellectual and volitional signs established by law that indicate the attitude of the guilty person to the action (or inaction) he commits and its consequences.
The form of guilt has great practical significance
1) The form of guilt allows us to determine the degree of social danger of an act and allows us to distinguish a criminal act from a non-criminal one.
2) The legislator differentiates criminal liability for committing a socially dangerous act depending on the form of guilt.
3) The form of guilt is taken into account by the legislator when classifying crimes.
4) The form of guilt predetermines the conditions for serving a sentence of imprisonment.
5) The presence of a deliberate form obliges the court to investigate the question of the motives and purposes of the crime.
In Part 2 of Art. 24 contains the following instruction: “An act committed only through negligence is recognized as a crime only in the case when it is specifically provided for by the relevant article of the Special Part of this Code.” Accordingly, if the article of the Special Part of the Criminal Code does not indicate a careless form of guilt, then this crime can be committed either intentionally or through negligence, depending on the design and features of the crime. If the article of the Special Part of the Criminal Code contains a special reference to a careless form of guilt, then this crime can only be committed through negligence.
Intent
As already indicated, guilt is characterized by two forms: intent and negligence.
Intent, in turn, is divided into two types: direct intent and indirect .
A crime is recognized as committed with direct intent if the person was aware of the social danger of his actions, foresaw the possibility or inevitability of the consequences and consciously desired their occurrence.
A crime is considered committed with indirect intent if the person was aware of the social danger of his actions, foresaw the possibility of socially dangerous consequences, did not want them, but consciously allowed them or was indifferent to them.
Apparently, crimes can be committed with direct intent, regardless of the legal structure of the crime. Only those intentional crimes can be committed with indirect intent in which the consequences relate to the mandatory elements of the crime (i.e. with material elements).
One nuance seems interesting: with direct intent, a person foresees the INEVITABILITY or POSSIBILITY of the occurrence of socially dangerous consequences. With indirect intent, a person foresees only the POSSIBILITY of consequences. In addition, with direct intent, the person also understands the cause-and-effect relationship between the act and socially dangerous consequences.
For indirect intent, the consequences are not desirable. This is the fee that the perpetrator is willing to pay to achieve another goal of his act. Consequences with indirect intent are a by-product, not the desired result. The consequences, with direct intent, constitute the purpose of the person’s act.
Thus, with direct intent, a person foresees the inevitability of the consequences to which he strives. With indirect intent, the subject always foresees the real possibility of consequences. The socially dangerous consequences that occurred were not the purpose of his activities. Therefore, it seems that with direct intent, a person has an actively positive attitude towards the consequences, with indirect intent, a passively positive attitude.
In criminal law, other types of intent are also distinguished.
Thus, an intention that suddenly arises differs from a premeditated one in terms of the time of implementation from the moment the intention arose. The first one arises and is realized suddenly. The second is realized after a certain time after its occurrence. The time of occurrence of intent in the presence of additional circumstances provided for by law may have legal significance. For example, if the intent to commit murder or cause grievous bodily harm arose and was carried out suddenly in response to the illegal or immoral behavior of the victim, then the act is qualified as a crime with a privileged element
.
Both sudden and premeditated can be both direct and indirect.
Depending on the degree of specification and certainty of consequences, a distinction is made between specific intent (definite) and unspecified intent (uncertain).
Intent is recognized as specific when a person is aware of the socially dangerous nature of his act, foresees specific consequences, desires the consequences to occur, or consciously allows them or is indifferent to them. A person may desire or allow one specific consequence or several specific consequences. This type of intent is called alternative.
Unspecified intent is an intent in which a person desired or allowed the occurrence of specifically unspecified consequences.
Outside the framework of direct or indirect intent, these types of intent do not exist.
Carelessness
Types of negligence are frivolity and negligence.
A crime is considered to be committed due to frivolity if the person was aware of the social danger of his actions, foresaw the possibility of socially dangerous consequences of his actions, but without sufficient grounds for this he arrogantly counted on preventing these consequences.
A crime is recognized as committed due to negligence if the person did not foresee the possibility of the occurrence of socially dangerous consequences, if the person did not realize the social danger, did not foresee the possibility of the occurrence of socially dangerous consequences, although with the necessary care and forethought he should and could have foreseen them, and does not want the occurrence of socially dangerous consequences consequences.
An important feature is that in case of negligence there is no positive attitude towards the consequences of the act: the person either does not foresee them at all, or expects to prevent them.
The difference between frivolity and indirect intent
So, the main differences between frivolity and indirect intent lie in the following plane:
1) When committing a crime out of frivolity, a person foresees the abstract possibility of the consequences of his act, and in case of indirect intent, a real possibility.
Foreseeing the abstract possibility of consequences from the real one is as follows: a person foresees the possibility of the occurrence of consequences in general in such cases, but excludes them as a result of his action in this case due to objective and subjective reasons. With indirect intent, a person foresees that the consequences may not occur at all, in such cases, but as a result of his act in the presence of existing circumstances.
2) With frivolity, a person takes an active position, albeit arrogantly, but still counting on preventing consequences, and with indirect intent, a passive position, since he does not make any efforts to prevent them, allowing them or treating them with indifference.
Negligence
In case of negligence, a person acts or fails to act without realizing the social danger of his act and without foreseeing the possible consequences. The key concepts here are two phrases: “should have foreseen the consequences” and “could have foreseen them . “Should have” means that the objective test of negligence is that a person has a duty to foresee the consequences of his act. These rules arise from the requirements of the law, contract, profession, position, and status of a person.
The word “could” means a subjective criterion that determines a person’s ability to foresee the consequences of his act. This requirement is related to the personal capabilities of the person, with mandatory consideration of the characteristics of the situation in which he found himself. The inability to foresee consequences may be due not only to the individual characteristics of the person, but also to the specifics of the situation or environment in which the consequences occurred.
Only a combination of objective and subjective criteria of negligence provides grounds for declaring a person guilty of committing the socially dangerous acts accused of him.
Objective and subjective criteria for criminal negligence
Criminal negligence includes a negative and a positive sign. If a positive sign of negligence is established, objective and subjective criteria must be taken into account.
According to the objective criterion, the person must have a legal duty to exercise due diligence based on the law, official status, professional functions of the perpetrator. In addition, there must be an objective opportunity to identify a dangerous situation and prevent its development.
The subjective criterion involves establishing the ability of a particular person, taking into account his individual qualities, to prevent the development of a dangerous situation. This task should be completely feasible for him from the point of view of physical, intellectual and social qualities and mental characteristics.
Criminal negligence and criminal frivolity differ from each other in that the former is considered a less dangerous form of guilt in criminal law.
Criminal negligence is present if a person does not foresee the consequences and does not allow for the possibility of causing harm, although he could have been sufficiently careful and adhered to the necessary precautions in order to understand the possible danger of his own actions.
Thus, criminal negligence contains two criteria - objective and subjective. The objective criterion is that a person must foresee the likelihood of consequences dangerous to society. The second criterion for criminal negligence is whether the person could have foreseen it.
The degree of foresight depends on the physical or intellectual capabilities of a person in a particular situation . In this case, not only individual characteristics matter, but also the specifics of the environment.
Innocent harm
If a citizen does not have the opportunity to guess and realize the social danger from his certain actions, then the law exempts him from criminal liability.
Innocent harm is qualified in the legislation of 2022 as an incidental situation with a person in which persons are not responsible even for the most severe harm caused:
- The first part of Article 28 of the Criminal Code of the Russian Federation indicates the complete absence of corpus delicti in human activities. At the same time, it is impossible to foresee extremely dangerous consequences of actions committed by a citizen.
- The second part of the article provides for a situation in which persons have the opportunity to foresee the occurrence of a dangerous situation as a result of their actions, but circumstances develop in such a way that they cannot be prevented.
In accordance with the law, innocent causing of harm is recognized in the following cases:
- If the person who committed such an act did not realize and, due to the circumstances, could not realize the social danger of his actions or inactions.
- In the case where the person who committed the act foresaw the possibility of consequences dangerous for society, but, despite this, was unable to prevent these consequences due to the inconsistency of his own psychophysical qualities with the requirements of extreme conditions or neuropsychic overload.
Serious nervous stress, mental disorders, and the absence of certain psychophysical qualities in extreme conditions quite often do not allow a person to orient himself in a timely manner and act in such a way as to eliminate the dangerous situation that has arisen.
Bibliography
- “Criminal Code of the Russian Federation” dated June 13, 1996 N 63-FZ (as amended on July 29, 2017) (as amended and supplemented, entered into force on August 26, 2017) // “Rossiyskaya Gazeta”, N 113, 18.06 .1996, N 114, 06/19/1996, N 115, 06/20/1996, N 118, 06/25/1996.
- Sitkovskaya O.D. Criminal Code of the Russian Federation: psychological commentary (item by article) / Academy of the Prosecutor General's Office of the Russian Federation. M.: CONTRACT, Wolters Kluwer, 2009.P.15.
- Commentary on the Criminal Code of the Russian Federation (article-by-article) // Ed. V. M. Lebedeva. – M.: Publishing house “Urayt”, 2014. P.95-96.
- Criminal law. General part: Textbook / Ed. V. N. Petrasheva. – M.: Education, 2014. – P. 85.
- Criminal law: General part: Textbook / Ed. N. I. Vetrova, Yu. I. Lyapunova. – M.: Yurayt, 2016. – P. 74.
Types of innocent harm
When determining a person’s innocence of causing harm, all the circumstances of the incident are taken into account, and possible options for the person’s behavior in cases that caused harm and provoked serious consequences are considered.
Article 28 of the Criminal Code of the Russian Federation provides for three types of innocent harm:
- If the citizen did not realize and, due to circumstances, could not realize the dangerous and tragic consequences of his own actions or inaction.
- If a person did not foresee and could not foresee the danger in the actions that he performed.
- If a citizen had the opportunity to foresee the danger in his actions, but as a result of great nervous stress, mental disorders due to the lack of psychophysical qualities in the extreme conditions created, he was unable to prevent the dangerous situation that arose.
Actions of a citizen committed accidentally, which entailed dangerous or tragic consequences, will be recognized as innocent in cases where, in accordance with the laws, it is proven that the person did not know and, due to the circumstances, could not know about the results of the actions he committed, and also did not had the opportunity to prevent them.
All three types of innocent injury contain some elements of negligent behavior and careless actions. But a detailed analysis and thorough investigation make it possible to understand that they are not negligence.
It should be borne in mind that sometimes it is not possible to prove your innocence . Depending on the type of damage caused, the court will impose an appropriate punishment.
