Legal and factual error: types, characteristics and criminal legal significance

Legal and factual error: types, characteristics and criminal legal significance


represents an incorrect assessment by the person committing the crime of his behavior, the actual circumstances of the crime, the consequences, the conditions of illegality, etc.

There are two types of errors:

  • legal errors
    are a person’s incorrect understanding of the legal essence or legal consequences of the act he commits;
  • factual errors
    are a person’s incorrect assessment of factual circumstances, which are objective signs of an act, mandatory elements of a crime.

Types of legal error:

  1. an error regarding the wrongfulness of an act is expressed in a person’s misconception:
      about the criminality of his act
      - the person believes that his actions are criminal and entail criminal liability, but are not provided for by the Criminal Code of the Russian Federation;
  2. non-criminality of his act
    - the person believes that the act he commits does not entail criminal liability, but the Criminal Code of the Russian Federation considers such an act a crime;
  3. error in the qualification of the act
    - the person is mistaken in the criminal legal assessment of the act;
  4. error regarding the type and amount of punishment for a crime.
    Such an error does not affect liability, since the type and amount of punishment are beyond the subjective side, and does not affect either the qualifications or the amount and type of punishment determined by the court.

Types of factual error:

  1. error in the object
    - consists of an incorrect understanding of the person committing the crime about the content of the object of the attack as a mandatory element of the offense;
  2. error in an object
    - a misconception regarding the properties and materially expressed characteristics of an object. An error in an item that is a mandatory element of the offense affects the qualification of the offense. An error in a subject that is an optional element does not affect the qualification;
  3. mistake in the identity of the victim
    - lies in the fact that the subject, wanting to cause harm to one person, as a result of a mistake, causes harm to another person. Actions in such cases are qualified as a completed crime;
  4. error in the nature of the action or inaction performed.
    This kind of error can be of two types:
      the person does not consider his actions (inaction) dangerous and entailing criminal liability, although they are recognized as a crime by the Criminal Code of the Russian Federation;
  5. a person considers his actions (inaction) to be socially dangerous, but in reality they are not - responsibility comes for attempted crime;
  6. an error regarding the signs characterizing the objective side
    may consist of an error regarding the quantitative or qualitative characteristics of socially dangerous consequences.

An error regarding the quantitative characteristics of the consequences does not affect the qualification of the offense if this error does not go beyond the limits established by the legislator.

An error in the qualitative characterization of consequences may include:

  • in failure to foresee harm that actually occurred, liability for an intentional crime is excluded;
  • in anticipation of harm that did not occur, liability may arise for an attempted crime (if there is direct intent).

Text of the book “Theory of State and Law”

22.2 Technical-legal categories

Legal technique also includes categories such as legal axioms, presumptions, legal fictions, and prejudices.

Legal axiom

- this is a position accepted in legal science and practice
without evidence
, due to its obviousness, persuasiveness and truth. For example, “the law does not have retroactive force”, “subjective law always corresponds to a legal obligation”, “no one can be a judge in his own case”, “of two acts on the same issue, the act adopted by a higher body and the act adopted later than the previous one."

Legal presumption

is an assumption about the presence or absence of certain facts, based on the relationship between the assumed facts and the facts in hand and supported by previous experience.

Presumptions are always tentative

character. This assumption is not reliable, but probable. The most common presumptions are the presumption of innocence, the presumption of knowledge of the law, the presumption of the truth of a normative act, etc.

In the legal literature, there are two types of presumptions: general legal

To general legal

presumptions are those that are accepted in all or many branches of law and that have actually become legal principles. In addition to those listed, these include: the presumption of integrity of a citizen, the presumption of legal personality of individuals and legal entities entering into legal relations.

As for industry presumptions,

then they have not reached the level of presumptions-principles and most often have a sectoral affiliation, for example, the presumption of equal shares of property of spouses acquired during marriage; presumption of waiver by the plaintiff of his claims if the plaintiff repeatedly fails to appear in court without good reason.

Presumptions last until they are rebutted, such as the presumption of innocence. But there are irrefutable presumptions, for example, the presumption that minors (under 14 years of age) do not understand the social danger of their act, even if, due to their early development, the teenager could be aware of the social danger of the crime he committed. However, the Criminal Code of the Russian Federation is based on the presumption of unawareness of the nature of the committed act until the age of 14.

Legal fictions

- this is a non-existent provision, but recognized by law as existing and, by virtue of this recognition, has become generally binding. Fictions are quite widely used in current legislation. So, according to Art. 21 (part 3) of the Civil Code of the Russian Federation, the day of death of a citizen declared dead by the court is considered the day the corresponding court decision enters into legal force. In part 2 art. 18 of the Civil Code of the Russian Federation establishes the time of the beginning of the unknown absence of a person. In criminal law, a legal fiction is the provision on expunging a criminal record if it is expunged in the manner prescribed by law. Fictions can also include exemption from criminal liability when a person actively repents, although he has committed a crime.

Legal fictions as a method of legal technique represent the construction of conditional reality

, which is protected by law, enshrined in a normative legal act and is a mandatory requirement.
Legal fictions make it possible to establish certainty
in legal relations, since the emergence and termination of legal relations are associated with these facts.


(literal translation from Latin - “attitude to a previous court decision”) represent an obligation for all courts considering a case to accept, without verification or evidence, the facts previously established by a court decision or sentence that has entered into legal force.

For example, if a court decision that has entered into legal force establishes the liability of the owner of a source of increased danger for the harm caused, then in the event of a recourse (counter) claim by the owner of this source against the direct cause of harm (for example, when using a car by proxy), the facts established in first trial, have a prejudicial

meaning, i.e. are not subject to dispute. Another example: a person’s conviction for theft of property can serve as the basis for a court decision in a civil suit for compensation for damage caused by this theft.

In the Criminal Procedure Code (2001), prejudice is characterized as circumstances established by a sentence that has entered into legal force, which are recognized by the court, prosecutor, investigator, inquiry officer without additional verification, if these circumstances do not raise doubts in the court. Moreover, such a sentence cannot prejudge the guilt of persons who have not previously participated in the criminal case under consideration (Article 90).

Thus, the facts and legal relations established by a court decision or sentence that has entered into legal force cannot be disputed

in another process.

When the decision enters into legal force, the parties to this process and other persons participating in the process cannot again assert the same claims in court and on the same basis.

This principle applies only to the parties involved in the process. If third parties have independent claims and, for good reasons, have not entered into the process, then in relation to these persons the previous trial does not have prejudicial significance. In other words, third parties may challenge

facts established by a previous court decision in which they did not participate.

But prejudice may disappear altogether when a decision that has entered into legal force is reviewed based on newly discovered circumstances.
22.3 Legal documents
Under the legal document

is understood as an external verbal expression of will that reinforces lawful or unlawful behavior and the corresponding result.

There is the concept of a document in a narrow sense: it is a business paper confirming a fact or right to something.

Legal (legal) documents, according to prof. A.V. Malko, is the tangible reality of law, through which people receive primary knowledge about the law and legal phenomena.

Legal documents act as material carriers of legal information (Prof. A.F. Cherdantsev). Therefore, by studying legal documents, you can learn about the legal life of a particular society, country, people in a particular historical period of time. For example, by studying the contents of the Code of Laws of 1497, 1550, and the Council Code of 1649, we learn about legislation, jurisdiction, the justice system and, in general, about the legal life of feudal Rus'.

Legal document, usually text

a legal act on paper, although with the development of electronic information, documents also appear on machine media - floppy disks, plastic magnetic cards, etc. For example, in civil circulation a category of securities appeared in uncertificated form (secured using electronic computers), between since securities always represent a document of a prescribed form with mandatory details, certifying property rights that can be exercised or transferred only upon presentation of these securities.

It is customary to distinguish the following properties (features) of legal documents:

1) contain information that has legal

significance; the content must correspond to the nature of the document;

2) they are characterized by formality

: they come from bodies or persons authorized to issue or accept these documents, for example court decisions, ministerial orders, various types of identity cards, birth certificates, death certificates, etc.;

3) have a special external design

, so-called details, including information about the entity who issued the document, the addressee to whom the document was issued, and contain information about him, the object, for example, the technical passport of a car indicates the characteristics that individualize the car - make, model, year of manufacture, number engine, body number, legal basis of ownership, etc.; legal facts are indicated, for example, when issuing a certificate. The above and other details are mandatory for a legal document and give it legal force;

4) accompany

all stages of legal regulation - lawmaking, law implementation, etc.


legal documents are carried out for various reasons.
So, A.V. Malko identifies four groups
of legal acts and documents:

a) regulatory legal acts containing rules of law;

b) law enforcement acts-documents containing individual government regulations;

c) interpretive acts-documents obtained as a result of the official interpretation of legal norms and regulations;

d) acts arising as a result of a contract (agreement) between relevant entities and containing both legal norms (regulatory agreements) and individual legal decisions (transactions between various entities).

A.F. Cherdantsev classifies legal documents depending on the content of legal information in the document and identifies five groups:

1) regulations.

Among them he includes not only the actual documents establishing the rules of behavior, but also interpretative acts of a general nature that contain interpretive norms;

2) documents containing decisions of an individual nature,

i.e. enforcement acts;

3) documents recording legal facts.

This is the most numerous group of documents, so it, in turn, is classified into separate

a) documents recording the legal status of a person

(passport, identity card, birth certificate, marriage certificate, etc.);

b) documents recording facts on which the legal regime of objects of law depends,

for example, a document on the allocation of land for construction, bank accounts and savings books, etc.;

c) documents recording facts and expressions of will

subjects of law, for example contracts, powers of attorney, statements, etc.;

d) documents recording facts and events,

for example, acts of damage to property, destruction of crops as a result of natural disasters, etc.;

e) documents recording facts of movement

inventory and other valuables, for example, receipts and expenditure documents, etc.

It seems, however, that all of the above documents constitute a larger group of law enforcement documents, since they are drawn up or issued in pursuance of current legislation or other regulations - orders, resolutions, etc.;

4) money and securities.

Here we must strongly object to the classification of money as legal documents. According to the current civil legislation, money constitutes things as objects of civil rights. Financial law also considers money not as legal documents, but as a special commodity, which is the only universal equivalent. Money performs the functions of a measure of value, a means of circulation, payment, and accumulation. As for securities, they can be classified as legal documents, since they record the property rights of their owners. These are shares, bonds, privatization securities, etc.;

5) documents confirming facts and evidence.

These documents are used to prove facts of legal significance, for example, various procedural documents - protocols of the scene of inspection of the incident, interrogation, confrontation, expert opinion, etc. However, these documents are usually classified as law enforcement acts of an additional nature in relation to the main law enforcement acts - court decision.

The classification proposed by A.V. seems clearer. Malko. It covers almost all documents - acts of legal content.

* * *

In legal science, instrumental

approach to legal technology.
It is considered as a set of only technical techniques in the field of lawmaking and law implementation. But legal technology has not only applied, but also fundamental
importance in the legal field. This is due primarily to the importance of legal categories, concepts, constructions, legal terminology used in lawmaking, when improving existing legislation, as well as in the process of its application. Mastery of legal techniques serves as evidence of the high general and legal culture of legislators, their professionalism, competence and makes it possible to create effectively operating normative legal acts and implement them.


23.1 The concept of legal errors and their properties
In domestic jurisprudence there is no clear, generally accepted understanding of legal errors, and a general theoretical concept of the problem of legal errors has not been developed. However, a legal error is most often interpreted as a negative result.

, caused by an unintentional wrong act of subjects of legal activity (good faith error).

There is another definition of the concept of errors. Yes, Prof. V.N. Kartashov believes that a legal error should be considered not as a negative result, but as an erroneous legal activity itself. Some scientists unite their positions and believe that it is more correct to interpret a legal error both as a process and as a result of incorrect actions of the subject of legal activity.

The first of these positions has currently received the greatest recognition among theorists of state and law. Based on the interpretation of a legal error as a negative result of legal activity, we will consider the signs (properties) of a legal error. They are as follows.

Firstly, it is necessary to highlight the unintentionality of the error

The subject who made the mistake proceeded from the assumption that his actions were correct. He acted in good faith
, that is, the error arose as a result of
an honest mistake
. In this case, there is no intention, intent to commit a mistake, or neglect of a legal obligation on the part of persons engaged in legal activities.

On the basis of unintentionality, it is customary to distinguish between a legal error and an offense

. An error excludes guilt, since it occurs without prior conscious intention. In other words, an error occurs accidentally, while an offense is always a conscious act of behavior, and in order to establish an offense it is necessary to establish its legal composition. Attributing a legal error to a sign of guilt without indicating this in the law means an objective imputation (unfounded accusation).

Secondly, current legislation provides for legal liability for committing an offense. As for a legal error, the subject does not bear legal responsibility for its admission. Of course, an error prevents the implementation of the subjective rights and legal obligations of participants in legal relations, but the offense directly encroaches on social relations protected by law. A legal error entails the right to demand its correction and the legal obligation of the relevant entity to eliminate this error.

Thirdly, a legal error always leads to a negative result

This is manifested in the fact that such errors to a certain extent impede the realization of rights, personal freedoms, interests protected by law, worsen the position of subjects of law, prevent the state from fulfilling its tasks and goals, and lead to other destructive phenomena. Therefore, it is quite natural that the Constitutional Court of the Russian Federation, in its resolution of February 3, 1998, in the case of checking the constitutionality of Articles 180, 181, paragraph 3, part 1, art. 187, art. 192 of the Arbitration Procedural Code of the Russian Federation classifies a legal error as a newly discovered circumstance
and invites courts of general jurisdiction and arbitration courts to accept complaints from interested parties about errors made by the courts.

Fourth, the legal error must be significant

in content and
in nature. Technical errors that have no practical significance can, in some cases, be ignored in the process of implementing a regulatory legal act. But most often, such errors are also subject to correction in accordance with the procedure established by law.

Fifthly, a legal error is characterized by the fact that it is committed by a body or official who has the right to engage in law-making, law-implementation or interpretative activities, i.e. subjects with the appropriate legal personality, to whom this right is assigned to the state or delegated to it (local government bodies , subjects of local lawmaking).

Sixthly, among the properties of legal errors it is customary to point out the procedural nature

identifying and correcting them. This means that legal errors can be identified and corrected not in an arbitrary manner, but only according to a certain procedure. Thus, the current Russian electoral legislation specifies the procedure and deadlines for correcting errors made by the precinct election commission when compiling voter lists. Every citizen has the right to submit an application to the precinct election commission about his non-inclusion in the voter list or about any error or inaccuracy in this list. The precinct election commission, in turn, is obliged to check the complaint and eliminate the error or, no later than 24 hours later, issue the applicant a written reasoned response to reject the complaint.

Seventh, to correct legal errors, special legal restoration means are used, for example, canceling a court decision, declaring an act invalid and not subject to application, etc.

Eighth, the legal error must be officially recognized

in an act established by law. Without such an act, it is quite possible to subjectively declare certain actions or acts as erroneous and, as a result, refuse to perform them.

Ninth, legal errors are characterized by causality

: An error committed under certain circumstances will not necessarily lead to an error by the subject under similar conditions. Therefore, it is impossible to make predictions regarding the possibility of legal errors occurring in various situations.

The named distinctive features of legal errors have not received universal recognition in domestic science, however, they make it possible to emphasize their legal significance and distinguish them from some other legal phenomena.
23.2 Causes of legal errors
Legal error represents the unity of the objective and the subjective. Consequently, the factors causing legal errors may lie in the sphere of personal characteristics of the subject who made the legal error, and are also determined by the social reality surrounding him. It follows that the causes of errors are not uniform in nature and the mechanism of influence on the behavior and actions of subjects.

Law-making, law enforcement and other state bodies and officials must always strive to ensure that the legal acts they adopt correspond to reality, to the objective laws of development of the state-legal sphere of society. However, in practice, the exact opposite situation is also possible, so legal errors are often caused by objective


Prof. A.B. Lisyutkin names some of the objective reasons for erroneous legal activities. Among them, he points out: 1) the historical relativity of human knowledge about the laws of development of legal matter; 2) insufficient level of development of methods of cognition and explanation of legal reality; 3) imperfection and heterogeneity of legal consciousness and legal practice; 4) lack of a unified legal policy in the activities of government bodies; 5) poor development of legal values ​​introduced by the official legal policy of the state, etc.

Towards objective

The reasons for the appearance of legal errors should also include the constant development of social relations, which the legislator and other legal bodies and institutions do not always keep up with. As a result, the current legislation lags behind the dynamics of social relations and becomes erroneous in some of its provisions, parts and even sectors, since it does not correspond to social realities.

Objective reasons include the contradiction between individual and public interests, and the state does not always find the right ways to solve this problem. The objective nature is largely due to the low state of the legal culture of modern Russian society, the low level of legal consciousness of citizens, officials, and other subjects of legal activity. However, as is generally accepted, objective reasons do not always lead to legal errors, although in the aggregate they form the likelihood of errors occurring.

At the same time, the occurrence of errors is greatly influenced by subjective

factors that are determined by a person’s personal qualities, his behavior, and actions. Among such reasons, the literature cites the low level of training of specialists in the field of jurisprudence, insufficient professionalism of legislators and law enforcers; the inconsistency of the current legislation, its gaps, and other defects; heavy workload of employees, unfavorable working conditions, shortcomings in the selection and placement of personnel. Subjective causes of legal errors include violation of the requirements of legal technology, poor quality work of developers of legal acts and experts, etc.

The entire complex of factors that determine the occurrence of legal errors is usually combined into two blocks

: 1) general legal reasons; 2) organizational and legal. The first is considered to be the lack of consistency in law-making activities; inconsistency of legislation; low professionalism of civil servants, etc. The second includes weak material, technical and information support of the legal system as a whole, imperfect staffing, lack of clear interaction in the activities of bodies at various levels, etc.

A similar classification of the causes and factors affecting legal activity and causing errors was developed by prof. N.N. Voplenko. He distinguishes internal and external causes

By internal factors he understands direct factors that, under certain circumstances, necessarily cause an error, and the scientist refers to external causes as circumstances that are not directly, but indirectly (indirectly) related to errors or contribute to their occurrence. In other words, the external causes of erroneous activity lie outside
the legal activity itself. For example, an unfavorable economic and other situation in the country. Internal reasons are determined by the level of professionalism and personal qualities of employees, lack of experience in this type of activity, overload with work tasks, etc.

Legal practice shows that most errors are determined by inattention, negligence in work, unskilled study of materials, incorrect interpretation of information received, etc.

Not every legal error inevitably entails negative consequences for legal entities, but any error can become potentially dangerous and give rise to other errors.

Subjective error and classification of crimes.

A subjective error is a person’s incorrect understanding of the objective properties of a socially dangerous act or its illegality. A legal error, which is a person’s misconception regarding the legal properties and legal consequences of the act committed, does not affect the qualification of the crime (believes that the act is not criminal and commits it - in this case there will be a crime). At the same time, if a person commits some actions that he considers criminally punishable, but they are not, there is no corpus delicti in the actions of such a person. This follows from Article 14 of the Criminal Code, according to which an act provided for by this code under threat of punishment is considered criminal. Recognizing this or that act as a crime, the legislator proceeds from the fact that every person is able to correctly assess the social danger of his actions and their harm to society, the citizen, the organization and the entire state. Public danger underlies the classification of any act as criminal. But we are more interested in factual errors. A factual error is a person’s misconception regarding factual circumstances, which are objective signs of the corpus delicti of a given crime and determine the nature of the crime and the degree of its social danger. Depending on the content of a person’s misconceptions, it is customary to distinguish between different types of factual errors. This leads to various rules for qualifying the crime. These rules regulate the qualification of crimes on the subjective side. We have already talked about them, but here we will consider them from the angle of subjective errors related to the actual circumstances of the case. These rules include the following: First Rule. If a person mistakenly believes that he is encroaching on one object, but in fact causes harm to another object, the act is qualified in accordance with the direction of the intent of the perpetrator as an attempt on the crime that was covered by the intent of the perpetrator: the person intended to steal drugs (the object is public health), but stole medicines that are not narcotic drugs (the object is property, the act is qualified under Article 158 if the intent was aimed at stealing simple medicines). In our case, what was done should be qualified as attempted drug theft - Part 3 of Art. 30, part 1 art. 229 CC. This is also stated in the resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 9 “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances,” which contains the provision that buyers who, instead narcotic, psychotropic, potent or toxic substances have acquired any other drugs or substances, then “if there are grounds provided by law, they may be held liable for attempted illegal acquisition” of these substances. In paragraph 13 of the resolution of March 12, 2002 No. 5 “On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices” it is stated that “if a person has stolen a firearm unsuitable for functional use, components for it, ammunition, explosives or explosive devices, being mistaken about their quality and believing that they are in good working order, the act should be qualified as attempted theft” of these items. Second rule. If a person mistakenly believes that he is encroaching on only one object, while in fact two or more objects protected by criminal law are suffering, what he has done should be classified according to the totality of crimes as a completed crime against the object to which the actions (inaction) of the perpetrator and a careless crime were directed affecting another object, if the perpetrator should and could have foreseen the possibility of causing harm to another object. For example, he shoots the offender who is standing near the kiosk. However, he missed, the bullet pierced the wall of the kiosk and hit the seller who was there. He died from his wound. In relation to the first action, the perpetrator is classified as attempted murder, and in relation to the second - as causing death by negligence. If in such cases causing harm to another object through negligence is a qualifying feature of the intentional crime in question, qualification in the aggregate is not required. So, if the culprit wanted, out of revenge, to set fire to his neighbor’s house, in which the fire killed people whose presence in the house the culprit did not foresee, but should have and could have foreseen, the act is qualified under Part 2 of Art. 167 of the Criminal Code of the Russian Federation. Third rule. If the intent of the perpetrator was aimed at causing harm to several objects, but only one of them was actually harmed, the act is qualified as a completed crime against the object that was actually harmed, and an attempted crime against the object that was not harmed, in the aggregate. So, if a culprit sets fire to a house with the aim of killing its inhabitants, but due to circumstances beyond the culprit’s control people were not harmed, the act is qualified as deliberate destruction of property by arson and attempted murder in a generally dangerous manner (Part 2 of Article 167, Part 3 of Article 30 , clause "e" part 2 of article 105 of the Criminal Code). Fourth rule. A person’s misconception about the subject of a crime, which is not accompanied by an error in the object of the crime, does not affect the qualification of the crime. So, if the culprit wanted to steal property from citizen A, but by mistake stole the property of citizen B, the act is qualified as complete theft. If an error in the subject of the crime is accompanied by an error in the object of the crime, it is necessary to qualify it according to the direction of intent as an attempt on the object that was covered by the intentions of the perpetrator. So, if the culprit, mistaking a lighter for a pistol, stole it, the act must be classified as attempted theft of a weapon. Fifth rule. An error in the identity of the victim, if it is not accompanied by an error in the object of the crime, does not affect qualifications. So, if someone A wanted to kill someone B, but in the dark confused him with another person and killed the latter, what he did should be classified as a completed murder. If an error in the identity of the victim is accompanied by an error in the object of the crime, the qualification is made according to the direction of the intent of the perpetrator. So, if the culprit wanted to kill a judge out of revenge, but killed another person, the act is qualified as an attack on the life of a person carrying out justice or a preliminary investigation (Article 295 of the Criminal Code). Sixth rule. Encroachment on an “unusable” object, i.e. an object that does not have the properties the presence of which is assumed by the perpetrator is qualified, based on the direction of intent, as an attempt to commit the corresponding crime. Thus, if the perpetrator shoots at a corpse, believing that he is shooting at a living person in order to kill him, the act is classified as attempted murder. Seventh rule. If the perpetrator used a means that was unsuitable in this case, but which he considered quite suitable, to commit a crime, the classification is made in accordance with the direction of intent as an attempted crime. Thus, an attempt to shoot at a person with the aim of killing him from a gun that has a cut-off firing pin, which eliminates the very possibility of a shot, is classified as attempted murder. Eighth rule. If the offender uses absolutely unsuitable means to commit a crime, which he considered suitable due to his ignorance or superstition (prayers, spells, witchcraft, hexing), the act does not entail criminal liability. Ninth rule. If the perpetrator makes a mistake in the method of commission, which is the distinguishing feature of the crime, the act is qualified depending on the intent of the crime to commit a crime in a certain way. So, if the perpetrator was going to commit a crime by stealing, but was noticed in the process, but did not realize this circumstance, the act must be classified as theft.

Tenth rule.
If the perpetrator, intending to commit a crime, criminal liability for which is differentiated in law depending on the severity of the consequences caused, caused less harm than that covered by his intention, the act must be classified as an attempted crime, depending on the direction of intent. Thus, if the culprit was planning to commit theft on a large scale, but mistakenly took away significantly less valuable property, the act must be classified according to the direction of intent as an attempted theft on a large scale. Eleventh rule. If a socially dangerous consequence, covered by the intent of the perpetrator, occurred as a result of actions other than those intended to cause this consequence, the qualification is made as an attempted crime, covered by the intent of the perpetrator, and careless infliction of the resulting consequences. For example, A shot a certain B with the intention of murder. Thinking that B was dead, A set fire to his house to hide the corpse. After the discovery of the corpse as a result of a forensic medical examination, it was found that the gunshot wound was not fatal, death was caused by carbon monoxide asphyxiation in a fire. In such a situation, it is necessary to qualify as attempted murder (part 3 of article 30, part 1 of article 105 of the Criminal Code) and deliberate destruction of property resulting in death by negligence (part 2 of article 167 of the Criminal Code), since death did not occur from those actions with which the perpetrator intended to cause her. Twelfth rule. If the perpetrator, when committing a crime, mistakenly assumes the presence of objective circumstances that increase the degree of social danger of the act, the act is subject to qualification as an attempted crime in the presence of these qualifying circumstances. So, if the perpetrator intended to kill a woman whom he mistakenly believed to be pregnant, it is necessary to qualify it as an attempted murder of a pregnant woman (part 3 of article 30, paragraph “d”, part 2 of article 105 of the Criminal Code). In this regard, one can hardly agree with the qualifications given in the ruling of the Presidium of the Supreme Court in the Kaysin case. Thus, Kaysin killed victim K. after she told him about her pregnancy and demanded money, threatening otherwise to declare that he raped her. A forensic medical examination established that the victim was not pregnant. The court of first instance qualified Kaysin’s actions under Part 3 of Art. 30, paragraph “g” part 2 art. 105 of the Criminal Code and Part 1 of Art. 105 of the Criminal Code. The Deputy Prosecutor General of the Russian Federation, in a supervisory submission, asked to change court decisions and exclude part 3 of Art. from Kaysin’s conviction. 30, paragraph “g”, part 2, art. 105 of the Criminal Code. The Presidium of the Supreme Court of the Russian Federation satisfied the supervisory submission of the prosecutor, indicating that Kaysin’s intent to take the life of the victim was fully realized and as a result of his actions the death of the victim occurred. At the same time, the intent of the perpetrator was aimed at taking the life of a woman who was obviously in a state of pregnancy, which was not reflected in the above qualification given by the Presidium. Thirteenth rule. If the perpetrator, when committing a crime, does not realize the presence of objective circumstances that increase the degree of social danger of the act, the act must be qualified as committed without aggravating circumstances. So, if the culprit killed a pregnant woman, but did not know about her pregnancy, the crime cannot be qualified using the qualifying feature specified in paragraph “d” of Part 2 of Art. 105 of the Criminal Code. Fourteenth rule. A common type of mistake is the so-called imaginary defense. In this case, a person may be mistaken about the social danger of the actions performed. So, A., walking along a dark street, heard footsteps behind him and thought that a person was catching up with him, intending to commit an attack on him. A. strikes the pursuer. Subsequently, it turned out that the passer-by wanted to ask A. for directions. In an imaginary defense, a mistake in the identity of the attacker is possible if the defender in the crowd mistakenly struck the wrong person who was attacking him. The mistake may consist in a misconception about the moment when the encroachment ends. However, in the latter case, one should take into account the provision of paragraph 5 of the resolution of the Plenum of the Supreme Court of the USSR of August 16, 1984 No. 14 “On the application by courts of legislation ensuring the right to necessary defense from socially dangerous attacks” that the moment may not be clear to the defender the end of the encroachments. The qualification of actions committed in imaginary defense is carried out according to the rules of factual error: a) if the person did not foresee, should not have and could not have foreseen the absence of a real socially dangerous attack and did not exceed the limits of necessary defense in relation to the conditions of the corresponding real attack, causing harm in imaginary defense does not entail criminal liability; b) if a person did not foresee, but based on the circumstances of the incident should and could have foreseen that there was no real socially dangerous attack, causing harm in imaginary defense entails criminal liability for a careless crime; c) if a person has committed actions that clearly do not correspond to the nature and degree of public danger of the attack in relation to the conditions of the corresponding real attack, causing harm in imaginary defense entails criminal liability for exceeding the limits of necessary defense. Fifteenth rule. One should distinguish from a factual error the so-called deviation of an action, in which there is no misconception of the person regarding the factual circumstances, which are objective signs of the crime and determine the nature of the crime and the degree of its public danger, and for reasons independent of the will of the perpetrator, harm is caused to the wrong person , which was the target of the attack. So, if A., who intended to kill B., missed and killed V., a random passerby, it is necessary to qualify it as attempted murder (Part 3 of Article 30, Part 1 of Article 105 of the Criminal Code) and careless causing of death (Article 109 Criminal Code), in cases where A. should have and could have foreseen the possibility of the death of another person from a shot. Don’t know how to decide or complete a coursework or dissertation? Order a solution

( 1 rating, average 4 out of 5 )
Did you like the article? Share with friends:
For any suggestions regarding the site: [email protected]
Для любых предложений по сайту: [email protected]