Ministry of Education and Science Russian Federation
Federal state budget educational
institution of higher professional education
"Komsomolsk-on-Amur State
Technical University"
Faculty of Economic Technologies
Department: Criminal Law Disciplines
COURSE WORK In the discipline "Criminal Law"
On the topic "The concept, goals, objectives of the criminal law of the Russian Federation"
Student of group 4YuRb4d-1 Yu.N. Solomenko
Teacher S.G. Latushkina
Standard controller S.G. Latushkina
Introduction…………………………………………………………………………3
1 The concept and subject of criminal law………..………………………........ 4
1.1 Criminal law system…………………………………………….…9
1.2 Sources of criminal law………………………………………………………………………..…...11
2 The main tasks and functions of criminal law………………………………………………………………………….….…14
3 The concept and meaning of the principles of criminal law…………………......16
Conclusion………………………………………………………………….22
List of sources used…………………………….………..23
Introduction
In most languages of the world, the name of the legal branch that regulates relations related to the commission of crimes comes from the words "crime" (for example, in English-speaking countries - criminal law, from English crime) or "punishment" (in Germany - Strafrecht, from German Strafe , in Bulgaria - punitive law).
N. S. Tagantsev wrote about this: “A criminal act as a legal relation contains two separate points: the relation of a criminal to a legal interest protected by law - a crime and the attitude of the state to a criminal caused by a criminal act committed by him - punishment; therefore, criminal law can be constructed in two ways: either a criminal act is put in the foreground, in relation to which punishment or punishment is a more or less inevitable consequence, or the punitive activity of the state is put forward and the criminal act is considered only as the basis of this activity. Hence the dual name of science ... ".
The name of this branch of law in Russian has an indirect relation to both crime and punishment. The adjective "criminal" was introduced into the legal lexicon in the last quarter of the 18th century. Its origin is twofold: on the one hand, it goes back to the legal monuments of Ancient Russia, which used such terms as “head” (a murdered person), “golovnik” (murderer), “golovshchina” (murder), “golovnichestvo” (rewarding relatives murdered), on the other hand - to the Latin adjective capitalis (from caput - head, person, individual), which in Roman law was included in the names of the most severe types of punishments associated with the death penalty, imprisonment or Roman citizenship.
So, even M. M. Speransky, in his explanations to the draft Criminal Code of the Russian Empire of 1813, pointed out that criminal penalties “are those where the matter is about the head, that is, about life, diminutio capitis, and the life of every person in society is threefold: physical, political and civil; the last two are called state rights. Any punishment that directly depresses or implores the being, or the state of a person, is a criminal punishment.
Criminal law is a branch of law that regulates social relations related to the commission of criminal acts, the imposition of punishment and the application of other measures of a criminal law nature, establishing the grounds for bringing to justice criminal liability or exemption from criminal liability and punishment. In addition, criminal law can be understood as a branch of legal science that studies this legal branch, as well as academic discipline, within which both legal norms and general theoretical provisions are studied.
Job tasks...
Object of study…
Subject of study….
The purpose of the work is to consider criminal law as a branch Russian law.
1 The concept and subject of criminal law
The origin of the word "criminal" in Russian is not fully understood. According to one version, it comes from the verb "to punish", i.e. "offend". According to another version, it is associated with the Old Russian words “criminal” and “criminal”, which meant crimes that entailed the death penalty or other punishment. It should be added to the above that in Articles 26, 96-98 of the Pskov Judicial Charter, "criminal" meant murder.
Currently, the term "criminal law" is used in the following meanings:
branch of law;
Branch of legislation;
Academic discipline.
Criminal law is an independent branch of law, that is, a set of criminal law norms as generally binding rules of conduct established by the state, addressed to an indefinite circle of persons, designed for repeated application and provided, if necessary, by coercive force of the state.
Criminal law as an independent branch of law has its own subject and method of legal regulation.
The question of the subject of criminal law regulation is debatable. A number of Russian authors expressed the opinion that criminal law does not have its own subject of legal regulation (A. A. Piontkovsky, V. G. Smirnov), but only protects those relations (family, labor, civil law and others) that are regulated other branches of law. For example, the Family Code of the Russian Federation (hereinafter referred to as the RF IC) regulates the procedure for collecting alimony for the maintenance of minor children. The norms governing maintenance relations correspond to the norm enshrined in the Criminal Code of the Russian Federation, according to which malicious evasion from paying funds for the maintenance of children constitutes a crime that entails criminal liability.
It seems that the functions of criminal law cannot be reduced only to the protection of relations that have received regulation in other branches of law. Criminal law has its own, rather specific subject of regulation.
Thus, the subject of criminal law as a branch of law is social relations, firstly, aimed at protecting the individual, society and the state from criminal encroachments, secondly, related to exemption from criminal liability and punishment, and, thirdly, related to preventive and stimulating function of the criminal law.
The method of criminal law regulation can be expressed in the following ways of influencing public relations:
Establishment of criminal law prohibitions;
Granting any person the right to counteract socially dangerous attacks (the right to necessary defense, the detention of a criminal);
Stimulation of the positive behavior of the perpetrator after the commission of a crime (active repentance, reconciliation with the victim);
Exemption from criminal liability or punishment under certain conditions;
Application of compulsory medical measures;
Application of sanctions of criminal law.
The listed means are basic and do not exhaust all the ways of criminal law influence on public relations.
Criminal law, as a branch of Russian legislation, is exhausted by the Criminal Code of the Russian Federation. This principle is enshrined in Part 1 of Art. 1 of the Criminal Code of the Russian Federation of 1996. No criminal laws establishing criminal liability can operate outside the framework of the Criminal Code, in parallel with it, and are subject to mandatory inclusion in its text.
The existence of norms referring to the norms of other branches of law (on crimes in the sphere of economic activity, on environmental crimes, on violations of special safety rules, etc.) does not shake this principle. The norms of other branches of law, being included in the criminal law norm, become its integral part.
Criminal law interacts with other branches of Russian law. Its connection with criminal procedural, criminal executive and administrative law is closest.
Criminal procedural law is a set of rules that determine the procedure and forms of activity of the body of inquiry, investigator, prosecutor and court in the investigation of crimes, trial of criminal cases in courts and appealing court decisions in such cases. The ratio of criminal and criminal procedural law is manifested, first of all, in the fact that criminal law defines those legal categories that constitute the subject of proof in criminal proceedings. So, for example, according to Art. 68 of the Code of Criminal Procedure of the RSFSR (hereinafter referred to as the Code of Criminal Procedure of the RSFSR) during the production of an inquiry, preliminary investigation and the trial of a criminal case in court is subject to proof of the guilt of the accused in the commission of a crime. Forms of guilt are defined in criminal law, in particular in Art. Art. 24-26 of the Criminal Code of the Russian Federation of 1996
In criminal law, the grounds for exemption from criminal liability and punishment are also defined, and in criminal procedural law - the procedure for such release. For example, Art. 75 of the Criminal Code of the Russian Federation establishes the grounds for exemption from criminal liability in connection with the active repentance of a person. Such grounds include: commission of a crime belonging to the category of acts of minor gravity for the first time, voluntary surrender, contributing to the disclosure of a crime, compensation for damage or otherwise making amends for damage caused as a result of a crime. This criminal law norm corresponds to the norm of criminal procedure law, enshrined in Art. 7 of the Code of Criminal Procedure of the RSFSR, according to which the court, the prosecutor, as well as the investigator or the body of inquiry, with the consent of the prosecutor, have the right to terminate the criminal case against such a person. At the same time, the criminal procedural law provides for certain guarantees of the rights of persons exempted from criminal liability on the indicated grounds. Thus, before the termination of the criminal case, the person must be explained his right to object to the termination of the criminal case. A person, considering himself innocent, may demand that his case be considered by a court and seek an acquittal. Thus, if criminal law determines the content of legal relations, then the criminal process determines the form.
The closest interaction of criminal law and criminal procedure is manifested in the issues of the basis of criminal liability, the subject of proof in a criminal case, prescription, amnesty, pardon, liability of minors.
Penitentiary law establishes the procedure for the execution of punishments and the application of other measures of a criminal law nature provided for in the Criminal Code of the Russian Federation, the procedure for exemption from punishment, and in this part directly interacts with criminal law. So, for example, criminal law establishes such a punishment as confiscation of property (Article 52 of the Criminal Code of the Russian Federation), however, a list of items that are not subject to gratuitous seizure into state ownership should be sought in the Criminal Executive Code of the Russian Federation (hereinafter referred to as the Penal Code of the Russian Federation). The Penal Code of the Russian Federation also defines the procedure for the execution of a court sentence on confiscation of a convicted person's property (Article 62), the actions of a bailiff to enforce such a sentence (Article 64), the obligations of third parties in relation to property subject to confiscation (Article 65), etc. .
Administrative law is close to criminal law in terms of tasks, since both of them put the protection of the rights and freedoms of the individual, property relations and the interests of the state at the forefront. In addition, we can note the similarity in the methods of influencing social relations, since both administrative and criminal law, first of all, use legal responsibility as such a means of influence.
Criminal law- this is a branch of law, a set of legal norms that determine the criminality and punishability of an act, as well as the grounds for criminal liability and exemption from it.
The subject of criminal law are social relations that arise from the moment the crime is committed. Subjects of criminal law - this is the person who committed the crime, and the state represented by law enforcement agencies. tasks criminal law is the protection of the rights and freedoms of the individual, the interests of the state and society, the protection of law and order.
Features of criminal law are that criminal liability applies only to individuals, and that the only source of criminal law is the Criminal Code of the Russian Federation. No other legal acts and court decisions can establish the norms of criminal law. Thus, in criminal law, the principle “that act that is not considered as a crime in the criminal law is not a crime” applies.
The Criminal Code consists of two parts - general and special. The general part outlines the basic concepts and principles of criminal law, and the special part contains a list of specific crimes and punishments for them. The criminal law extends its effect to the entire territory of Russia, including the airspace above it, territorial sea waters, ships and aircraft located outside Russian territory, and the territory of Russian embassies abroad. Any person who has committed a crime on the territory of the Russian Federation shall be liable under this law. The principle “the law has no retroactive effect” applies to criminal law
The key concept of criminal law is the concept of crime. A crime - this is an unlawful, guilty and punishable act provided for by criminal law, causing significant harm to public relations or creating a threat of causing such harm. Thus, signs of a crime the following:
1) illegality, which is defined as a violation of the norms of the criminal law;
2) special public danger. It is interpreted as causing significant harm to various social relations.
Crime encroaches on the foundations of the state and social system, life, rights and freedoms of citizens, property, public order;
3) guilt presupposes the presence of guilt in the form of intent or
negligence;
4) punishability. Every crime must be punished.
The commission of a crime is followed by imposition criminal responsibility. It differs from other types of legal liability in a high degree of severity and always comes from the state represented by the court.
From the moment a crime is committed, the person who committed it and the state have mutual rights and obligations. The state has the right to bring the violator to justice and is obliged to determine the punishment corresponding to the crime. The person who committed the crime must be punished, but has the right to the punishment that corresponds to the crime, as well as to mitigation of punishment.
Criminal liability is two grounds - factual and legal. Factual basis means a characteristic of the behavior of the subject, i.e. committing a socially dangerous act. Legal basis implies the existence of a corpus delicti, which is understood as a set of features that characterize a given socially dangerous act as a crime. These signs are the object, the objective side, the subject, the subjective side of the crime. The absence of any sign does not allow bringing to criminal liability (lack of corpus delicti).
The object of the crime it is a social relationship that has been harmed.
The objective side of the crime - it is its outward manifestation. It assumes the presence of a socially dangerous act, expressed in the form of action or inaction, socially dangerous consequences of the act and a causal relationship between them.
The subject of the crime it is only a natural person capable of bearing criminal liability, i.e. who has reached a certain age and is aware of the danger of his actions (sane). The age for criminal liability is 16 years. For some particularly serious crimes, criminal liability comes from the age of 14. The latter include premeditated murder and infliction of bodily harm, rape, robbery, robbery, theft, etc. A person is recognized as insane if at the time of the commission of the crime he could not control his actions. The insane include people suffering from mental illness or dementia, as well as limes who do not suffer from such an ailment, but at the time of the crime they could not be aware of their actions. A person who is under the influence of alcohol or drugs is not considered insane. On the contrary, such a condition is an aggravating circumstance.
The subjective side of the crime- this is the mental attitude of a person to the unlawful act committed by him, manifested in the form of guilt, motive and purpose.
In practice, there are circumstances that outwardly seem to be crimes, but do not contain corpus delicti. These include:
Necessary defense;
Urgent need;
Physical or mental coercion, execution of an order or order;
Causing harm during the arrest of a person who committed a crime.
Necessary defense - this is the legitimate protection of the interests of the state, society, the rights of the defending itself from encroachment by causing harm to the attacker without exceeding the limits of necessary defense. The necessary defense should be carried out only against a socially dangerous, criminal encroachment. Perhaps the application of measures of necessary defense by a third party in the interests of the person who was attacked. The necessary defense must be directed against an actual attack that has begun, is causing harm, and has not yet ended. The limits of necessary defense must not be exceeded, i.e. intentional actions that clearly do not correspond to the nature and danger of the encroachment. It is unacceptable to inflict unnecessarily grievous harm, which is clearly not caused by necessity.
Urgent need - it is a situation where a person is compelled to inflict, as a last resort, less significant harm in order to prevent significant harm. Actions can be recognized as committed in a state of emergency, provided that there was a real danger to the right-protected interests, which threatened to cause harm in the next moment, and not in the future, and the elimination of the danger was impossible by other means. The harm done must be less than the harm prevented.
Physical or mental coercion, execution of an order or order. A person may commit a crime under the influence of threat or coercion, or due to material, service or other dependence. It is possible to speak about the application of measures of responsibility only when the person had real opportunity not to commit a crime, i.e. when his will was not crushed. Coercion takes away a person's ability to act freely. In the case when coercion completely suppresses the will of a person, one cannot speak of a socially dangerous act. Coercion can be of several types.
physical coercion is expressed in beatings, cuts, causing bodily harm.
mental coercion is a threat directed against the person of a person, his relatives and property. Coercion may be applied due to the material or service dependence of a person. material dependence arises if the person is dependent or is a debtor. service dependency is determined by subordination in the service to the person who persuaded to commit a crime (for example, the execution of an illegal order).
Causing harm during the arrest of a person who committed a crime. Ordinary citizens have the right to detain a criminal only during or immediately after the commission of a crime, i.e. if the offender committed a completed crime or part of its objective side and tried to escape. Detainees must be sure that this is the lido who committed the crime. The purpose of detention should be to bring the suspect to law enforcement agencies. Lynching, reprisal against him is not allowed. The harm caused to the detainee must be minimal and correspond to the severity of the crime, the nature of the resistance, the personality of the detainee (recidivist or first-time offender), the situation of detention (for example, peacetime or wartime).
One of the aggravating circumstances is complicity - this is the commission of an intentional crime by two or more persons. Moreover, the participants must be sane and reach a certain age.
There are several types of partnership:
1) complicity without prior agreement, for example, murder in a collective fight;
2) simple complicity with prior conspiracy, when criminals stipulate their actions in advance
3) an organized group characterized by a high degree of cohesion, constant leadership, distribution of roles and created to commit a number of crimes;
4) the criminal community is a stable, close-knit group
people uniting for joint criminal activity, characterized by long-term and permanent ties between its members and the specifics of crimes.
Depending on the distribution of roles in a crime, the following are distinguished: types of accomplices,
1) performer - the person who directly committed the crime;
2) organizer - the person in charge of the crime. Leadership can be manifested in the preparation of a crime plan, the distribution of roles, active leadership in a crime, etc.;
3) instigator - the person who persuaded to commit the crime;
4) accomplice - a person who facilitates a crime by giving advice, providing funds, removing obstacles, concealing the instruments of crime, etc. The accomplice must be aware that his actions contribute to the commission of the crime, and must foresee the harmful consequences of his actions.
List of crimes specified in the Criminal Code is quite wide. Large group - crimes against the person.
1. Crimes against human life (murder, incitement to suicide).
2. Crimes against human health (causing bodily harm).
3. Sexual crimes (rape).
4. Crimes against personal freedom (abduction, seizure
hostages).
5. Crimes against honor and dignity (slander - dissemination of deliberately false information that degrades honor and
dignity of a person that undermines his authority).
6. Crimes against the constitutional rights of citizens (violation of the secrecy of correspondence, voting rights, labor protection standards, etc.).
Another group is made up crimes against property.
1. Disinterested crimes (destruction or damage to another's property).
2. Accomplishment crimes (theft, robbery, robbery, fraud, extortion).
Theft - This is a secret non-violent theft of someone else's property.
Robbery - this is an open seizure of property from possession, both without violence, and with the use of violence that is not dangerous to the life and health of the victim.
robbery - this is an attack for the purpose of taking possession of property, combined with violence dangerous to the life and health of the victim, or with the threat of such violence.
Fraud - This is the taking of another's property by deceit or breach of trust.
Extortion - this is a requirement to transfer property under the threat of violence against the person of the victim or his relatives, the disclosure of disgraceful information or the destruction of property.
Next group - economic crimes: obstruction entrepreneurial activity, restriction of competition, illegal business, smuggling, tax evasion, etc.
Crimes against public order include simple, malicious and especially malicious hooliganism. The latter is distinguished by exceptional cynicism and the use of weapons.
Allocate also crimes related to the manufacture and sale drugs, environmental, transport, military crimes.
A special group is state crimes. These are high treason, espionage, violent seizure of power, terrorism, etc.
Investigation of a crime - appointment punishment. It is possible only by a guilty verdict of the court on behalf of the state, it acts as a legal consequence of the crime and gives rise to a criminal record.
Purposes of punishment correction and re-education of the offender, prevention of the commission of new crimes, both by the convict himself and by other persons.
There are punishments basic, which are designated as independent and which cannot be attached to others (deprivation of liberty), and additional, which join the main ones (confiscation of property).
Types of criminal penalties are very diverse:
1) deprivation of liberty;
2) correctional labor without imprisonment;
3) deprivation of the right to hold certain positions or engage in certain activities;
5) dismissal from office;
6) the imposition of the obligation to compensate for the harm caused;
7) public censure;
8) confiscation of property;
9) deprivation of a military or special rank.
A special type of punishment is the death penalty, although in accordance with Article 20 of the Constitution of the Russian Federation it is not applied.
When imposing punishment, the court takes into account mitigating and aggravating circumstances. extenuating circumstances confession is recognized; assistance in solving the crime; committing a crime for the first time, due to a combination of circumstances, in a state of mental agitation caused by the unlawful actions of the victim; commission of a crime by a minor; exceeding the limits of necessary defense, etc. Aggravating circumstances include the commission of a crime by a person who has previously committed a crime, complicity, the onset of grave consequences as a result of a criminal act, the involvement of a minor in a crime, a state of intoxication, etc. The list of aggravating circumstances is clearly defined in the law, and the court cannot consider other circumstances as aggravating. On the contrary, the court may also recognize as mitigating circumstances those that are not specified in the law.
In some cases, the court may recognize that the correction of the offender is possible without isolating him from society, i.e. when the crime is committed for the first time and does not pose a great public danger. In this case, the court may apply conditional sentence. It is manifested in the non-application of punishment by the court and the appointment of a probationary period. Only deprivation of liberty and correctional labor are conditionally assigned.
If during the probationary period the convict does not commit a new crime, then the punishment is not applied. If the convict systematically violated public order, the court may cancel the conditional sentence and send the convict to serve the sentence.
A convicted person is considered convicted from the moment the sentence is passed and for a certain period of time after serving the sentence. criminal record entails a number of legal consequences. It constitutes an aggravating circumstance in the event of a new crime, allows a person to be recognized as a recidivist, and influences the determination of the type of correctional labor colony when convicted for a repeated crime.
Criminal record is extinguished after a certain period of time after serving the sentence. The following terms of repayment of a criminal record are established:
1) one year after serving a sentence not related to deprivation of liberty;
2) three years after serving a sentence of imprisonment for a term not exceeding three years;
3) five years after serving a sentence of imprisonment for a term of three to six years;
4) eight years after serving a sentence of imprisonment for a term of six to ten years;
5) the conviction of a convicted person for a term of imprisonment of more than 10 years is removed after 8 years after serving the sentence by a court decision, which must establish that the convicted person has reformed.
In addition, a criminal record may be removed by the court ahead of schedule at the request of public organizations.
Questions and tasks
1. Describe the branch of criminal law. What are its features?
2. What is a crime? What are its signs?
3. How does criminal liability differ from other types of legal liability?
What are the signs of a crime and what are they?
5. What circumstances preclude the application of criminal liability?
6. What is complicity? What are its types? What types of accomplices
exist?
7. Describe the types of crimes.
8. What are the purposes and types of punishments?
9. What is a conditional sentence?
10. What is a criminal record? How is it repaid?
DICTIONARY
Axiom- a statement that does not need to be proven true.
Anthropogenesis- the process of becoming a human as a biological species.
Unemployed- these are able-bodied citizens who do not have a job and earnings, apply to the employment service and other organizations in order to find work and are ready to start it.
Biosphere- "living" shell of the Earth, the entire animal and plant world.
Marriage- it is an equal, voluntary union of a man and a woman, concluded in compliance with the procedure and conditions provided for by law, with the goal of creating a family and giving rise to mutual personal and property rights and obligations for the spouses.
Marriage and family relations- personal relationships associated with human reproduction and the upbringing of children.
Faith- it's a way of being religious consciousness, a special mood, an experience that characterizes his condition.
Guilt- this is the mental attitude of a person to his own illegal behavior and its results, expressed in the form of intent or negligence.
Power- this is the ability and ability to carry out one's own will within these social relations, to have a certain impact on the activities, behavior of people with the help of any means: rights, authority, violence.
Upbringing- the process of purposeful influence on a person to form certain qualities in him.
Perception- it is a holistic image of a material object, given through observation.
Hypothesis- scientific assumption, the truth of which requires proof.
Globalization- this is the unity of the development of all mankind, the strengthening of interaction between various countries of the world in the economic, political and cultural spheres.
State regulation of the economy- this is the impact of the state on the economic life of society and the social processes associated with it, during which the economic and social policy of the state is implemented.
public finance- funds associated with the formation and use of the state budget.
The state budget- annual financial plan for income and expenditure and the state.
State- it is a political organization of society that extends power over the entire territory of the country and its entire population, has a special administrative apparatus for this, issues generally binding decrees, collects taxes from the entire population and has sovereignty.
Civil society is a set of moral, religious, national, socio-economic, family relations and institutions through which the interests of individuals and their groups are satisfied.
Citizenship- it is a stable legal relationship between a person and the state, which determines their mutual rights and obligations.
legal capacity is the ability to independently, through conscious actions, exercise rights and bear obligations.
Activity- manifestation of human activity in any sphere of his existence.
Treaty- This is an agreement between two or more persons aimed at the emergence, change or termination of a civil legal relationship.
Income ~ This is the amount of money and material goods received for a certain period of time.
Spiritual world of man- this is the sphere of his life, and in which he shows his intellectual and creative abilities.
Strike- this is an ultimatum action of the labor collective or trade union, a form of pressure on the administration by stopping work in order to achieve satisfaction of the requirements that have not received permission from the conciliation commission and labor arbitration.
Delusion- inconsistency of knowledge with objective reality.
Wage- it is the price of the labor force provided by employees in the process of labor activity.
Ideology- a system of philosophical, political, moral, legal, aesthetic and religious views and ideas.
Investment- These are long-term investments of capital in any sectors of the economy, both domestically and abroad.
Individual- a representative of the human race, endowed with special features that are different from other people.
Individuality- specific features that distinguish a person from the totality of his kind.
Inflation- the overflow of the sphere of circulation with paper money due to their excessive issuance.
Art- a kind of spiritual activity of people, the spiritual development of reality by a person in order to form and develop his ability to creatively transform the world and himself according to the laws of beauty.
art history- a set of sciences that study the socio-aesthetic essence of art, its origin and patterns of development, features and content of the species division of art
the nature of artistic creativity, the place of art in the social and spiritual life of society.
True- knowledge that is true.
Classes- these are large groups of people, differing in their place in the historically determined system of social production, in their attitude to the means of production, in their role in the social organization of labor, and in the methods of obtaining and the size of the share of social wealth that they dispose of.
Competition- rivalry between market participants.
Cult- a system of established rituals, rituals, religious specific actions, dogmas.
culture- it is a set of achievements of mankind in the material and spiritual spheres, a specific way of organizing and developing human life, presented in the products of material and spiritual labor, in the system social norms and institutions, in spiritual values, in the totality of people's relations to nature, to each other and to themselves.
Personality- it is the integrity of the social properties of a person, a product community development and the inclusion of the individual in the system of social relations through active objective activity and communication.
Interethnic relations- relations between representatives of different nations.
Local government- this is an independent and under its own responsibility activity of the population of a certain territory to address issues of local importance.
Methodology- this is the application to the subject of research of specific techniques and methods scientific knowledge. This term also defines the science that studies the methods of scientific knowledge.
State mechanism- it is an integral hierarchical system of special bodies and institutions through which the state exercises power and manages society.
outlook- it is a set of views, ideas, attitudes, norms that determine a person's attitude to the world around him and act as regulators of his behavior.
Myth- this is a story that symbolically expresses some events that took place in the past of the people, in the light of religious beliefs.
Monarchy- this is a form of government in which the supreme state power is exercised solely, the knives are dark, inherited and does not provide for responsibility to the population.
motive- a conscious impulse that guides the subject when performing an action.
Tax- this is a mandatory depreciation to the state budget, carried out by payers in the manner and under the conditions determined by legislative acts.
The science-
type of activity, the purpose of which is the knowledge of the world,
acquisition of new knowledge and their rational comprehension
scientific knowledge- it is an objective study of the world, regardless of the views and beliefs of a person.
Nationalism- ideology and practice aimed at inciting ethnic hatred and enmity.
neolithic revolution- the transition from an appropriating economy to a producing economy, from gathering and hunting to agriculture and cattle breeding.
Exchange- it is the process of movement of consumer goods and production resources from one participant in economic activity to another.
Education- the process of purposeful influence of the teacher on the student in order to instill in the latter new knowledge for him.
Communication- process of interaction between two or more people.
Society- this is a part of the material world isolated from nature with the totality of historically established forms of joint activity of people.
Public relations- it is a system of connections through which society acquires integrity and stability.
Socio-economic formation- it is a historical type of society based on a particular mode of production.
Custom- this is a generally accepted, historically established rule of behavior, which is fixed as a result of repeated repetition for a long time, has become a habit and has become a necessary vital need of people.
Commitment- this is a legal relationship in accordance with which one person (debtor) is obliged to perform certain actions in favor of another person (creditor) or refrain from performing certain actions,
State body- it is an integral part of the mechanism of the state, which, in accordance with the law, has a certain structure, powers to manage any sphere of society's life and closely interacts with other elements of the state mechanism.
Behavior- the process of interaction of individuals with the environment, manifested in their external (motor) and internal (mental) activity.
Cognition- assimilation of the experienced in order to find the truth.
Politic system societies- is a set of state and public organizations participating in political life countries.
Political relations- relations that arise in the process of managing society and the struggle for power.
Concepts- these are the products of the socio-historical process of cognition embodied in words, which highlight the common essential properties of objects and phenomena and at the same time summarize the most important knowledge about them.
Consumer- a person who purchases goods and services to satisfy personal needs, and not for profit.
Needs- perceived and experienced by a person dependence on the conditions of his existence
Right- this is a system of regulation of social relations, which is expressed in a certain form (sources of law), represents the ideals of justice and goodness in society, has a connection with the state and for the violation of which legal liability is provided.
Constitutional state- this is such an organization of state power that most fully ensures human rights and freedoms, and the activities of the state and its relationship with citizens and their associations are based on the rule of law.
Offense- guilty socially harmful unlawful act committed by a capable subject.
legal relationship- it is a social relation that is regulated by the rules of law.
Legal capacity- the ability to have certain rights and obligations.
Lawmaking- activities to create legal norms.
Sentence- it is the intention of the seller to offer the same product for sale within a certain period of time at all possible prices for it.
Entrepreneurship- independent economic activity individuals and their associations, aimed at making a profit.
Performance- it is the perception of an object as a whole, even when we do not feel it in its entirety.
Nature- this is all the diversity of the surrounding world both on Earth and in the Universe.
Progress- the transition from lower, less perfect forms to higher and more perfect ones, which is associated with an increase in the level of organization of the system.
Relations of production- relations in the process of production and distribution of material goods.
industrial revolution- the transition from manual labor to machine, from manufactory to factory.
Society development- it is a process of progressive changes that occur at every given moment at every point in the human community.
rational cognition- a necessary stage of cognitive activity following the sensory perception of an object, during which a variety of knowledge is acquired.
Revolution- these are radical changes of the highest degree, implying a radical breakdown of pre-existing relations, which are universal in nature and rely, in some cases, on violence.
Religion- it is a form of worldview, one of the spheres of the spiritual life of society, social groups, individuals, in which the development of the world is carried out through its doubling into this world - "earthly", perceived by the senses, and the other world - "heavenly", supernatural, supersensible.
Republic- form of government in which the supreme state power belongs to elected bodies elected by the population for a certain period and responsible before the voters.
Market- this is a form of economic relations between consumers and producers in the sphere of exchange, a mechanism for the interaction of buyers and sellers of economic goods.
Deal- this is an action of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
Sequester- This is a reduction in spending in the process of executing the state budget.
A family- This is a group of people connected by marriage and kinship, which ensures the upbringing of children and satisfies other socially significant needs.
Law system- it is the internal structure of law, which is a set of norms, institutions, sub-sectors and branches of law.
Own- it is a form of appropriation of economic resources and commodities, as well as relations in this area between subjects of economic activity.
Consciousness- property human brain perceive, comprehend and actively transform the surrounding reality.
estate- This is a separate group of people with strictly defined rights and obligations, inherited.
Socialization- it is the process of mastering social roles, acquiring social statuses and accumulating social experience.
social group- This is a set of people who have a common social attribute and perform a socially necessary function in the structure of society.
social role- it is a pattern of behavior fixed as expedient for people of a certain status.
Social inequality- these are the conditions under which people have unequal access to social goods such as money, power, prestige.
social relations- it is a stable system of connections between individuals that has developed in the process of their interaction with each other in the conditions of a given society.
social norms- rules of conduct, patterns, standards of activity, the implementation of which is mandatory in society.
social status- this is the relative position of an individual or group in the social system, due to the social functions they perform with the rights and obligations arising from them.
sociogenesis- the process of formation and development of society.
Capabilities- These are the individual mental qualities of a person that allow him to successfully acquire knowledge, skills and abilities.
Demand- the intention of buyers to purchase a given product at a given price, supported by monetary opportunity.
Country- a certain territory that has a state affiliation
Subculture- a system of values, attitudes, ways of commanding and life styles of a certain social group, different from the dominant culture in society, but associated with it.
Sphere of society- this is a certain area of public life, including the most stable forms of human interaction.
Theory- a special type of knowledge that combines a set of concepts and conclusions on a given issue into a single system.
Product- it is a product of labor that satisfies some need and is intended not for the producer's own consumption, but for sale.
Work- this is an activity to transform the surrounding reality and meet needs.
Fascism- ideology and politics that not only proclaim the superiority of one nation over another, but also call for the destruction of "inferior" nations.
State shape- This is the organization of state power and its structure.
Form of government- this is the internal structure of the state, the administrative-territorial organization of state power, which determines the nature of the relationship between the constituent parts of the state, between central and local authorities.
Form of government- This is the way of organizing the supreme state power, the structure of the highest bodies of the state, the procedure for their formation, the term of office, the distribution of competence between them, as well as the nature of relations with the population and the degree of its participation in the formation of the organs of the suit.
Form of political regime- it is a set of ways and methods of exercising state power.
State functions- these are the main directions of its activity, in which the essence and social purpose of the state is expressed.
Target- it is a mental model of the future result, which the subject strives to achieve in the course of his activity.
Price- monetary value of goods and services.
Civilization- the next stage of culture after barbarism, which gradually accustoms a person to orderly joint actions with other people; the totality of spiritual, material and moral means with which a given community equips its member in his opposition to the outside world; qualitative specificity (originality of material, spiritual, social life) a particular group of countries, peoples at a certain stage of development.
Evolution- these are gradual, slow, quantitative changes that eventually lead to a transition to a qualitatively different state.
Economy- basic science economic life society.
economic system- this is the totality of all economic processes taking place in society on the basis of the property relations and economic mechanism that have developed in it
Economic efficiency- obtaining the maximum possible benefit from available resources.
Economic resources (factors of production)- it's all, what used in the production of goods and services.
Emancipation of minors- declaration of a minor who has reached sixteen years of age as fully capable if he works under an employment contract, including a contract, or, with the consent of his parents, adoptive parents or guardians, is engaged in entrepreneurial activities.
Emission - issue of new batches of paper money.
Etiquette- a set of rules of conduct relating to the external manifestation of a person's relationship to others.
Ethnos(ethnic community) is a type of stable social community of people that has historically emerged, represented by a tribe, nationality, nation.
ethnocentrism- confidence in the exceptional correctness of their national culture and a tendency to belittle the cultural achievements of other nations.
legal facts- specific life circumstances with which the rules of law associate the emergence, change and termination of legal relations.
Language - the process of transmitting information using sounds combined into semantic speech constructions
The word criminal arose on the basis of the Old Russian word head, hence the killer was called "golovnik", and the murder - "golovnichestvo", "golovytsina", "golovytsina" 1 . According to the well-known researcher of the etymology of the Russian language A.G. Preobrazhensky, the term "criminal" in its original sense meant "related to the murdered, to the head, to the victim of the murder" 2 . Over time, there has been some expansion of the meaning of the term "criminal". As a semantic parallel, A.G. Preobrazhensky, explaining this word, cites a comparison with the Latin word gev sargis - “a case threatening execution”, i.e. criminal case. It is easy to see that the meaning and meaning of the word "criminal" gradually shifted from the victim to the offender and was used in relation to only one and the most ancient type of crime - murder. Hence, many authors rightly assert that in the original sense the term "criminal law" meant - "answer with your head" 3 .
The phrase "Criminal Law", firstly, refers to the branch of criminal law, which is a system of norms that are adopted by the State Duma Federal Assembly RF and, according to Part 1 of Art. 1 of the Criminal Code, consist of the Criminal Code. Separate criminal-legal normative acts adopted by the State Duma are subject to mandatory inclusion in the Criminal Code. Secondly, criminal law is understood as a branch of law that includes not only the norms of criminal law, but also criminal legal relations arising on their basis, as well as law-making and law enforcement activities. Thirdly, criminal law is understood as a science that studies this branch of law, and an academic discipline studied in higher legal educational institutions 1 .
Russian criminal law is an independent branch of law, which is characterized by all the signs (features) inherent in law as a whole. Thus, criminal law is a system of norms established by the state (legislature).
Criminal law as an independent branch, of course, is a set of homogeneous norms, and this homogeneity is primarily due to their content. Substantially, these norms are oriented, on the one hand, to an act that (according to the current criminal legislation) is recognized as a crime, and on the other hand, to a law enforcement officer who is obliged to assess the committed act as criminal only in accordance with the requirements of the criminal law and on the basis of it. . In addition, the homogeneity of the norms is expressed in their general functional orientation. Ultimately, these norms are intended to affect the relationship of people with each other, their relationship with the state (represented by the relevant authorities) in the event of a criminal act; prevent similar acts in the future.
It is known that the need for the existence of criminal law is recognized, and even more so, not perceived by all members of society. However, from this it does not lose its social value. On the contrary, criminal law would lose its main purpose if it were guided only by the principle of voluntary execution. The demand here is unthinkable without a coercive element, the guarantor of which is the state. The coercion of criminal law must be equally applicable to all who commit a crime. To a certain extent, this is due to the universally binding nature of the norms of criminal law.
The universality of criminal law implies, on the one hand, that everyone who has committed a crime is obliged to suffer the impact of criminal liability, and on the other hand, that the law enforcer in this case is obliged (and not entitled) to use criminal law norms.
Coercion of the norms of criminal law; coupled with their obligatory nature, implies a property of two kinds: firstly, to protect the victim (offended), i.e., to restore or compensate for his rights and interests violated by the crime; secondly, to reason with the criminal (offenses
chika), i.e., force him to undergo those undesirable consequences that he must (under the obligation voluntarily imposed on himself by the fact of committing a crime) suffer. In other words, the mechanism of criminal legal protection of the interests of society from criminal encroachments is a kind of satisfaction of the needs of each person and all people together in the safe conditions of their existence. If law in general, including criminal law, does not satisfy these needs (regardless of the reasons), then it, as a social regulator, loses its moral and factual positions and loses its authority among the population, turning into ballast.
Satisfaction of these needs, as it were, connects criminal law to life-giving social sources that feed and affirm it as a necessary and sufficiently effective state-legal regulator of relations between people.
The independence of criminal law does not suffer from the fact that it is included in the system of other public regulators. Only in their total interaction can criminal law manifest its independence. The autonomy of criminal law makes it possible to establish a set of signs with the help of which this or that condemned act is recognized as criminal due to the fact that it threatens the normal development or even the existence of this or that sphere of human social or state existence, i.e. becomes socially dangerous.
Any encroachment on the subject of social relations, morally approved and regulated, represents a certain danger. However, the nature and extent of this danger may be different. Accordingly, the forms of official reaction must be adequate to the danger of such an encroachment. In some cases, the state (legislator) is limited to measures to restore the violated legal rights of the victim, if it is a violation of his property rights that can be restored (civil law impact); in others, disciplinary or administrative measures may be applied to the violator. For more dangerous offenses, criminal law regulations apply, which involve criminal liability.
Based on the foregoing, it can be concluded that criminal law establishes, first of all, the basis and limits of criminal liability for those acts that are recognized as crimes, and provides for the possibility of applying a certain punishment to the guilty. This conclusion leads to the logical conclusion that criminal law also regulates cases of exemption (if there are legal grounds for that) from criminal liability.
In this regard, the assertion is indisputable that the norms of criminal law are established only by the state represented by its legislative body.
Thus, criminal law is an independent branch of a single legal system, which is a set of homogeneous norms of the highest body of state power, which contain a description of the signs that allow the law enforcer to recognize the act as a crime, and determine the basis and limits of criminal liability, as well as the conditions for exemption from criminal liability and punishment.
The essence of the norms of criminal law lies in the fact that they provide for what acts that are most dangerous for the individual, society and state are crimes, and what penalties can be imposed for their commission. Thus, criminal law is a set of legal norms established by the state that determine which acts that pose an increased danger to the existing system of social relations are recognized as crimes and what punishment the persons who committed these acts are subject to.
1.2. criminal law system
As a result of a long historical evolution, criminal law norms scattered over various sources gradually formed into a certain system that has many of its own (inherent only in the system) elements: an institution (a set of homogeneous norms), a separate norm, hypothesis, disposition, sanction of the norm, etc. d.; as autonomous, it interacts with other systemic formations (criminal procedure, civil, administrative law, morality, psychology, statistics, etc.); the system of criminal law is characterized by a hierarchical structure (norm, group of norms, institution, etc.).
Criminal law is not just a collection, but an integral, internally consistent, ordered system of legal norms that determine the criminality and punishability of socially dangerous acts.
Structurally, criminal legislation (law) is divided into two parts - General and Special. The first of these includes norms that establish the rules for the operation of the criminal law in time and space, define the concept of a crime, establish the age at which criminal liability begins, formulate the concept of complicity, a completed and unfinished crime (attempt and preparation for a crime), intent , negligence, necessary defense, extreme necessity and other circumstances excluding the criminality of the act, criminal punishment, its goals, types and procedure for assigning, as well as the grounds for exemption from criminal liability and punishment.
Criminal law includes in its structure the General and Special Parts. In the criminal law literature, the opinion was expressed that the General and Special parts of criminal law are in relation to each other in the ratio of "axioms" and "theorems" 1 . But if one adheres to this point of view, then one can logically conclude that the general part of the science of criminal law does not need to be developed or improved, because an axiom is an indisputable truth that does not require proof. Meanwhile, the history of the General part of the science of criminal law shows that it is enriched with new theories, concepts, concepts. The conceptual and theoretical apparatus of the General part of the science of criminal law plays an important methodological role in relation to the Special Part 1.
At present, no one doubts the need for such a gradation. However, before the 18th century there were separate criminal laws that defined specific crimes and provided for specific sanctions for them.
The General Part contains norms defining: tasks and principles of criminal law; grounds for criminal liability and exemption from it; limits of action of criminal laws in terms of persons, in time and space; the concepts of crime, guilt, responsibility, insanity, stages of committing a crime, complicity, prescription, circumstances precluding the criminality of the act. It also gives a system of punishments, general and special grounds for imposing punishment and exemption from it, etc.
A special part of the criminal law is a system of norms that specifically define the types of crimes and establish the punishments applied by the court if they are committed. At the same time, the crimes are set out in the Special Part of the Criminal Code not arbitrarily, but systematized (combined into groups) depending on the focus on a particular object of criminal law protection - against a person, against property, in the field of economic activity, against public safety and public order, against state power, etc.
A special part of criminal law specifies the scope and content of criminal liability in relation to each element of the crime.
There is a close and inextricable connection between their norms, since it is practically impossible to apply the norms of the Special Part without the rules enshrined in the General Part. Their continuity is determined by the unity of content. The institutions of the General Part perform the role of a kind of criminal law matrix; they have the meaning of fundamental provisions that predetermine the entire system of criminal law and, in essence, the structure of its Special Part, the range of its institutions and the list of acts included in them recognized as crimes.
The general and special parts of criminal law are organically interconnected, in unity representing an integral system of criminal law norms. At the same time, without understanding the provisions of the General Part of Criminal Law, which are studied within the framework of the academic discipline of the same name (the course of the General Part of Criminal Law) and set out in this textbook, it is impossible to understand and correctly apply the norms of the Special Part.
The study of the General Part of Criminal Law involves the disclosure of the social meaning (social conditionality) and the specific legal content of the provisions contained in Art. 1-104 of the Criminal Code, internal logic and the relationship of criminal law norms and institutions, mastering the methods of legal analysis and interpretation of their content, as well as the practice of application.
In other words, the norms of the General Part, accumulating in themselves criminal law provisions of a universal nature, delegate their properties (features) to the institutions of the Special Part, thereby orienting the legislator to the optimally permissible volume and content of offenses, types and sizes of punishments that allow the law enforcement officer to solve the problem of fighting with crime. That is why the norms of the General Part of Criminal Law are basically of a binding nature, instructing the judiciary to be guided by the decisions contained in them or take them into account by applying the norms of the Special Part. This manifests the organic connection between the General and Special parts of criminal law at the level of law enforcement.
At the same time, it is impossible to see the systemic nature of criminal law only in its division into two parts. As a system of interrelated legal norms, criminal law is composed of relevant institutions, the largest of which are the institutions of crime and punishment. They, in turn, include pedagogical institutes that are more fractional in volume, but impressive in content:; for example, stages of criminal activity, complicity, plurality, types of punishments, convictions, etc. Institutions consist of separate norms (articles of the criminal law) containing not only a hypothesis, disposition and sanction, but also, in certain cases, various types of offenses (parts articles of the criminal law): simple, privileged, qualified and especially qualified.
The criminal-legal system realizes itself with the help of a mechanism that includes objective and subjective factors.
Objective factors are primarily a change in social and legal realities. At the same time, any legal system, including the criminal law system, due to its static character, is conservative to a certain extent, and sometimes to a very significant extent, as a result of which it inevitably breaks with reality, which is fraught with the emergence of social zones that are not protected by criminal law. by law. And the more such zones, the higher the level of crime. That is why it is in various, especially transitional, periods that the issue of updating and significant improvement of criminal legislation is so acute.
The subjective factors of the operation of the criminal legal system consist in the conscious (subjective) perception by the legislator, law enforcer and citizens of certain criminal legal decrees. In this regard, it is very important for the indicated subjects to develop their own vision of the optimal model of attitude towards the system of criminal law norms. If, for example, the legislator catches the emerging abnormal relations that stimulate crime, he can localize them by timely establishment of criminal law control over these relations.
The foregoing convinces of one thing - the development of the criminal law system, which is based on the current criminal legislation, must be carried out constantly and taking into account a wide variety of factors, including historical ones, because criminal law norms, having social and legal plasticity, are not without " Janusian duplicity”: when assessing the deed, they are turned to the past, and when punishing, they are turned to the future.
In addition, the historical cross-section of the analysis of the criminal law system allows us to identify the following main directions of its development:
firstly, the correction of certain norms of criminal law in order to bring them into line with the changed and constantly changing system of social realities;
secondly, the constant change of priorities, methods of persuasion and coercion, depending on the category of crimes committed and the degree of danger of criminals.
The criminal law system directly affects the system of criminal legislation, which has the closest connection with it, but retains its relative independence.
1.3. Sources of criminal law
Criminal law, like any legal branch, has its own legal sources - regulatory legal acts containing a set of legal norms that make up this branch of law.
As rightly noted by N.S. Tagantsev, "both logically and actually, the occurrence of a criminal act presupposes the existence of a punitive norm" 1 . The existence of a punitive norm presupposes the elucidation of the question of the sources of criminal law.
The dual understanding of the source of law, established in the domestic theory of law, as a source of law in the material and in the formal (special) sense, makes it possible to clearly identify and consider the external form of expression in which criminal law are objectified and become obligatory in a given place and at a given time. norms 2 . From this point of view, the only source of Russian criminal law is the criminal law, acting in the form of a single codified regulatory legal act that has the force of a federal law - the Criminal Code of the Russian Federation, adopted on June 13, 1996 and entered into force on January 1, 1997.
The legal source of criminal law is only the criminal law, tk. in accordance with Part. 1 Article. 1 of the Criminal Code of the Russian Federation, the Criminal Code of the Russian Federation is the single and only source of its criminal legislation. This is the specificity of criminal law, because the sources of other legal branches can be both codified normative legal - codes, and independent laws and by-laws (decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, departmental orders, as well as regulatory legal acts of subjects Russian Federation, etc.) 1 .
A criminal law is a single codified legal act adopted by authorized legislative bodies, consisting of a system of interrelated legal norms that establishes the basis and principles of criminal liability, determines which acts dangerous to an individual, society or state are recognized as crimes, and establishes the types of punishments and other measures of a criminal law nature for the commission of crimes, and also provides for the grounds and conditions for exemption from criminal liability and criminal punishment.
Crimes in comparison with other offenses are characterized by increased public danger, the measures of state coercion provided for by the sanctions of criminal law for their commission are aimed at significantly restricting and infringing on the rights and freedoms of the subject of protective criminal law relations. Therefore, the criminal law, like other federal laws, p. "o" Art. 71 of the Constitution of the Russian Federation is referred to the jurisdiction of the Russian Federation. And in accordance with paragraph "c" of Art. 84 of the Constitution of the Russian Federation, draft criminal laws by decision of the President of the Russian Federation may be submitted for public discussion for their subsequent adoption by a referendum.
Developing in parallel with the entire legal system of the Russian Federation, the criminal law undergoes certain changes and is constantly being improved. However, the specificity of the Criminal Code of the Russian Federation also lies in the fact that, in accordance with Part 1 of Art. 1 of the Criminal Code of the Russian Federation, all new laws establishing criminal liability for the commission of crimes are subject to mandatory inclusion in the Criminal Code of the Russian Federation. Such laws may supplement the Criminal Code of the Russian Federation with new norms or change the texts of its existing norms. No other laws and regulations, except for the Criminal Code of the Russian Federation, can establish criminal liability.
Thus, the Criminal Code of the Russian Federation is the only source of criminal law, based on the Constitution of the Russian Federation and generally recognized principles and norms. international law, which is established by Part 2 of Art. 1 of the Criminal Code of the Russian Federation, because The legal basis of the Russian legal system, of which the criminal law is a part, is the Constitution of the Russian Federation. The Constitution of the Russian Federation determines the content of criminal law, its principles are based on its provisions. Considering that the fundamental rights and freedoms of citizens enshrined in the Constitution of the Russian Federation in accordance with Art. 15 of the Constitution of the Russian Federation are provided with justice, the application of the criminal law ensures the protection of the constitutional rights of the individual, his interests, all forms of ownership, as well as the state structure established by the Constitution of the Russian Federation. So, part 1 of Art. 2 of the Criminal Code of the Russian Federation, the tasks of the Criminal Code of the Russian Federation include: the protection of the rights and freedoms of man and citizen, property, public order and public safety, the environment, the constitutional order of the Russian Federation from criminal encroachments, ensuring the peace and security of mankind, as well as the prevention of crimes. At the same time, it should be noted that the constitutional principle of the priority protection of the interests of the individual is enshrined in the specified norm on the tasks of the Criminal Code of the Russian Federation and in the system of its Special Part, which put the interests of the individual in the first place in the hierarchy of objects of criminal law protection.
According to part 4 of Art. 15 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system, and if an international treaty of the Russian Federation establishes rules other than those provided for by law, then the norms of the international treaty are applied. But this provision is not a norm of direct action for criminal law, because. any legal norms of criminal law are subject to inclusion in the Criminal Code of the Russian Federation. Given that the norms of international law do not establish criminal liability, but mainly relate to the establishment and protection of human rights, vesting states with international legal obligations to combat crime, their provisions should be considered sources of criminal law related to the observance of human rights in the application of criminal law. . The concretization of international legal principles and norms is reflected in the principles of criminal law set forth in Art. 3-7 of the Criminal Code of the Russian Federation, as well as that part 2 of Art. 1 of the Criminal Code of the Russian Federation proclaims: "This Code is based on the Constitution of the Russian Federation and the generally recognized principles and norms of international law."
It should be noted that the norms of international law are the basis for many norms of the General and Special Parts of the Criminal Code of the Russian Federation, for example, the provisions of Ch. 34 of the Criminal Code of the Russian Federation “Crimes against the peace and security of mankind”, the norms of which provide for the prosecution of persons who have committed criminal acts that are contrary to many international treaties and principles of international law, such as: planning, preparing, unleashing or waging an aggressive war (Article 353 of the Criminal Code of the Russian Federation); the use of prohibited means and methods of warfare (Article 356 of the Criminal Code of the Russian Federation); attack on persons or institutions enjoying international protection (Article 360 of the Criminal Code of the Russian Federation). Many provisions of the General Part of the Criminal Code of the Russian Federation are based on international agreements or refer to international treaties to which the Russian Federation is a party, reflecting the supremacy of international law over domestic law. This applies, in particular, to the institution of international immunities, since Part 4 Art. 11 of the Criminal Code of the Russian Federation establishes: "The issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity, if these persons commit a crime on the territory of the Russian Federation, is resolved in accordance with the norms of international law." The provisions of international treaties of the Russian Federation are referred to in Art. 11.12 of the Criminal Code of the Russian Federation, which establish the limits of Russian criminal jurisdiction, as well as Art. 13 of the Criminal Code of the Russian Federation - the material extradition norm of Russian legislation.
The criminal law is subject to mandatory publication (Part 3, Article 15 of the Constitution of the Russian Federation). Considering that the Constitution of the Russian Federation and federal laws have supremacy throughout the territory of the Russian Federation (Part 2, Article 4 of the Constitution of the Russian Federation), and in accordance with Part 2 of Art. 15 of the Constitution of the Russian Federation "State authorities, local governments, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws", the criminal law is subject to steadfast execution by all citizens of Russia, officials and other persons located on its territory - in This is the principle of the universally binding norms of criminal law.
Summarizing the above, we can say that the criminal law, being a codified federal normative legal act, has legal force throughout the Russian Federation, is the only source of criminal law, contains the principles and general provisions of criminal law, establishes the criminality and punishability of acts, establishes the grounds for and conditions for exemption from criminal liability and punishment, is based on the Constitution and the generally recognized principles and norms of international law.
1.4. Criminal law in the system of other branches
There is a well-known postulate that any encroachment on legally protected social benefits is a danger to society. At the same time, something else is clear: the degree of this danger can be different, and therefore the methods of protection also differ. Thus, finding out which measures of influence of which branch of law are applicable to a given offender depends on the sphere of social relations that are harmed, as well as on the severity of the offense itself within the same social sphere. That is why criminal law is closely related to other legal branches. From the standpoint of a constructive approach, it makes sense, first of all, to point out their socio-moral and organizational-legal unity, and then to the differences, which, as you know, lie in the plane of the objects of the method of regulation, as well as the legal consequences of an offense.
Criminal law is closely connected with a number of other branches of law, primarily with criminal procedure and penal law. Solving the issue of the presence of a specific crime in the act of a person and bringing him to criminal responsibility requires a special procedure. The procedure for criminal proceedings, which meets the objectives of solving crimes, legally and fairly punishing the perpetrators, protecting the interests of persons held criminally liable, is regulated in detail by the Criminal Procedure Code of the Russian Federation (CCP).
Penitentiary law, the main source of which is the Criminal Executive Code of the Russian Federation (PEC), determines the procedure for the execution of each of the punishments provided for in the Criminal Code. At the same time, the regulation of the procedure and conditions for the execution (serving) of punishments is carried out in such a way that punishment is not just a punishment for a crime committed, but contributes to the correction of convicts, the restoration of justice and the prevention of crimes.
From criminal law as a set of criminal law norms that form a branch of law, one should distinguish criminal law as a set of ideas, views, theories that reveal the patterns of formation and development of criminal law norms, the effectiveness of their application in the fight against crime and directions for further improvement of criminal legislation. The latter form the science of criminal law, many of the provisions and conclusions of which, in turn, are studied within the framework of the academic discipline of the same name.
The research conducted by scientists in the field of criminal law helps to better understand the content of criminal law norms and institutions, assess their role in the fight against crime, ensure the improvement of criminal legislation on a scientific basis, based on knowledge of the processes that take place in the political, economic and other spheres of society as well as in law enforcement practice.
For quite a long time, the science of Russian criminal law (as well as the legal system of Soviet socialist law as a whole) developed in a very isolated manner, not adequately perceiving the results of theoretical research and data on the practical effectiveness of the application of criminal law in foreign countries and other legal systems. Currently, the use of comparative studies, as well as reliance on international experience in determining approaches to the regulation of the norms on responsibility for criminal acts and the limits of the use of criminal law in counteracting negative phenomena and processes that impede the normal development of society, is an important direction in the Russian science of criminal law.
First of all, it should be said about the close contact of national and international criminal law (the formation of which as an independent branch is a matter for the near future). They cooperate on the issues of combating international crimes, extradition of criminals, criminal liability of persons enjoying special international protection, etc.
Of particular importance is constitutional law, which predetermines the content and system of the current criminal legislation, determines social priorities, the protection of which is the primary task of criminal law and legislation. In other words, the norms of constitutional law are the legal basis on which it develops and to which (as well as international law) criminal law must conceptually correspond.
The application of criminal law is associated with certain procedural rules: the procedure for bringing to criminal responsibility and initiating a criminal case on the grounds of one or another composition; indictment; choosing a measure of restraint; determination of methods and ways of proving guilt; termination of criminal prosecution; acquittal or conviction and the application (in the latter case) of criminal punishment. As you know, these actions are regulated by the norms of criminal procedure law. At the same time, procedural activity is subject to the criminal-legal assessment of the deed committed by the guilty. In the interpretation of the philosophical science of law, the connection is criminal (material); and criminal procedure law, is subject to the dialectic of the relationship between content and form. Criminal procedural law is a peculiar form of establishing the guilt of a person in a committed crime. Criminal law and criminal procedure are especially closely related in such institutions as the basis of criminal liability.
The “kinship” of criminal and penal law is determined primarily by the fact that the existence of the former is conditioned by the norms of criminal law, which determine the grounds, limits, conditions and procedure for imposing penalties. The procedure and conditions for the execution (serving) of the imposed punishments are regulated by the norms of the penitentiary law. In addition, the goals of criminal punishment find their further implementation in the scope of the norms of penal law. The connection between criminal and penitentiary law is especially noticeable when resolving issues of releasing a convict from criminal punishment. The foregoing does not contradict the thesis about the independence of penitentiary law, which ended a long discussion about the place of this branch in the system of law.
It is difficult to overestimate the degree of closeness of criminal and administrative law in solving the problems of distinguishing between crimes and administrative offenses, the correlation of administrative and criminal law sanctions in the legislative "transfer" of administrative offenses to the rank of crimes or vice versa. The connection between these branches in the recent past was also manifested in the fact that, according to some norms of criminal law necessary condition responsibility was an administrative prejudice - the preliminary bringing of the perpetrator to administrative responsibility. The convergence of these branches was also found in cases where a person was brought to administrative responsibility for a crime that did not pose a great public danger, and was exempted from criminal responsibility.
Criminal law "cooperates" with civil law. This primarily applies to the area of delimitation of property crimes and civil torts, as a rule, containing a property element. A comparative study of the effectiveness of criminal and civil legal sanctions of a property nature: a fine and confiscation of property can bring enormous benefits. Only by considering the norms of these leading industries in relation to each other, it is possible to correctly determine the limits of criminal and civil liability.
In the field of combating economic crime, which includes the most dangerous crimes (property, economic, commercial and environmental), there are points of contact between criminal, business and environmental law.
In protecting the labor and production rights of citizens, ensuring safe working conditions for them, the closest connection between criminal and labor law is most noticeable.
Thus, we can conclude that criminal law, being systemic in nature and a relatively independent legal phenomenon, is itself only a part (albeit an impressive one) of a larger entity called the legal system of Russia.
2. MECHANISM, PRINCIPLES AND OBJECTIVES OF CRIMINAL LAW
2.1. Characteristics of the mechanism of criminal law regulation
As already noted, the cardinal issue that primarily resolves criminal law is the grounds and limits of criminal liability. All other diversity and richness of manifestations of criminal law matters is derived from the solution of this issue, and therefore plays, although necessary, but still a secondary (service) role.
Naturally, the issue of criminal liability should be resolved in each specific case not on its own, but in relation to a criminal act that deserves punishment. It can be concluded that the concepts of "crime", "criminal liability", "criminal" and "punishment" as universal "and fundamental criminal law categories in their totality determine the content-functional belonging of this branch of law, determine the specifics of its subject and method of regulation, the structure, content and hierarchical interaction of the institutions of the General and Special parts of criminal law, which allows the latter (with varying degrees of success) to solve the general social problem of combating crime.
Criminal law solves this problem primarily through the prism of a separate criminal act, which carries certain features typical of many such acts. From these positions, criminal law, quite logically, is interested in the content of this act, its features and properties that are amenable to legislative fixation and allow for the necessary typology of crimes.
Criminal law studies and legally formalizes a criminal act in order to determine: a) its functional ability to act as a factual and legal basis for criminal liability; b) its harmful properties for the subjects of public relations; c) that measure of punitive influence on the inflictor of evil (criminal), which is necessary to restore the justice that has been violated by him.
In this regard, the creator (doer, performer) of a criminal act, acting as the addressee of criminal liability and punishment, is also in the field of view of criminal law. Criminal law is interested in those features (properties) of a criminal that determine the content and form of his guilt and the degree and measure of criminal liability that depends on it.
Regarding the fixation of the basis of criminal liability and taking into account the properties of the guilty person, criminal law cannot ignore the substantive characteristics of the criminal act. This is due to the fact that crime is not an abstract Model created by a speculative creator; it is a subject-substantive phenomenon capable of causing (and often causing) harm to the individual and public interests of people and, because of this, it contains criminal law features.
A criminal act must be considered from two angles: as the attitude of the offender to the personal, public or state good that he violates; as an attitude towards the criminal of the state, society, the victim.
In the totality of the elements of the criminal law mechanism for protecting the interests of the individual, society and the state from criminal encroachments, a clear functional hierarchy must be observed. The binding, pivotal element is the active person (criminal). If there is no figure, one cannot talk about a crime. In the connection between “criminal” and “crime”, the first is the source, the second is the result.
In turn, an act containing the necessary criminal law features is the only basis for criminal liability. In the pair "crime" and "criminal liability" the leading role is given to the crime. There is no crime - there is no reason to talk about criminal liability.
Thus, when committing a crime, a person turns on a mechanism that is very complex in the moral, psychological, legal and substantive sense, operating according to the principle of a boomerang: "evil that he has created returns (should return) with the retribution of a criminal legal punishment."
The organic connection of these elements predetermines the dynamics of their interaction, which, in turn, determines the specifics of the functions, content of the subject and method of conventional legal regulation.
2.2 Functions of criminal law, subject and method of criminal law regulation
Criminal law (in collaboration with other socio-legal regulators) protects social values created by centuries-old human activity from potential (possible) criminals and criminal encroachments. This is the protective function.
With its positive, social and value properties, criminal law is addressed primarily to honest, norm-abiding citizens, encouraging them to be included in the complex, but necessary for the development of the individual, society and the state, protective; mechanism; How more people are drawn into its orbit, the smaller the proportion of the criminal law regulator should be in it. In this regard, one of the main tasks of criminal law in the field of protective function is the fight against criminal psychology, the ideology of the criminal world and the criminal way of life.
Punitive, repressive properties of criminal law primarily refers to the one who committed (or tried to commit) a crime, trying with all the force of his coercive charge to localize, and subsequently destroy the deviant (anomalous) attitude that arose as a result of this. The ultimate goal of criminal law in this regard is the "crowding out" of such relations from public life: Terrifying attributes that inevitably accompany the process of implementing punitive criminal law institutions(albeit with varying degrees of impact), are focused on all (including those who have already committed a crime) subjects of public relations in order to keep them from criminal bringing (including in the future). This is the main meaning of the regulatory function. Promptly responding to a crime committed, the norms of criminal law thereby prevent the onset of more destructive (often irreparable) harm to socially significant interests of people, as if forestalling possible criminal encroachments. At this stage, the regulatory function is transformed into a protective one. It can be said that the regulatory function is an active (active) form of protection of the subjects of social relations, which necessarily manifests itself in extreme (criminal) situations.
If we figuratively imagine the totality of social relations subject to protection by criminal law means in the form of a huge warehouse, then criminal law, in the words of M. I. Kovalev 1, can be represented as a watchman (sentry); ready to repel any intrusion on the object protected by him. Watchman (watchman) is a very primitive model of one of the main functions of criminal law, although it quite accurately reflects its essence.
Naturally, these functions are not equivalent in terms of the conditionally expected social result of their implementation. One of them (regulatory) solves primarily tactical problems, the other (protective) is designed for the long term. However, acting together, interdependently and interpenetratingly, they constitute the essence of the mechanism of criminal law regulation.
Based on the general theoretical postulate, the formation of certain branches of law can be substantiated, and even more so, explained primarily by the specifics of the subject of regulation. It is known that social relations are the subject of legal regulation. To establish the subject of direct criminal law regulation means to single out a group of social relations that differ (qualitatively) in a certain unity. At the same time, it would be wrong to think that these relations are homogeneous in all their manifestations. The isolation of regulation by the norms of one branch of law of heterogeneous or not completely homogeneous social relations is due to their complexity and diversity, close, and sometimes inseparable interconnection.
The subject of criminal law regulation are relations arising in connection with the commission by individuals of the most dangerous types of offenses - crimes. The commission of a crime is a legal fact that gives rise to a special legal relationship between the individual who committed the criminal offense and the state represented by law enforcement and the court (parties or participants in the legal relationship). A person who has committed a crime is obliged to suffer the unfavorable legal consequences arising from this, in particular, to be subjected to criminal liability, to conviction on behalf of the state in a court verdict and to serve the punishment imposed on him by the court. In turn, law enforcement agencies (bodies of inquiry, investigation, prosecutor's office) are obliged to expose a person in committing a crime, to prove his guilt in this, and the court - to certify the correctness of the conclusions of the bodies preliminary investigation and impose punishment on the guilty person in strict accordance with the law.
There are three groups of social relations that make up the subject of criminal law 1 . First of all, these are protective criminal legal relations that arise in connection with the commission of a crime between a person who has committed an act prohibited by criminal law and the state. This criminal legal relationship is one-sided: the offender is obliged to bear responsibility for the committed act, and the state has the right to punish him.
The second group includes relations related to keeping a person from criminal encroachment through the threat of punishment contained in the criminal law. The criminal prohibition imposes on citizens the duty to refrain from crime. In this case, we are not talking about the criminal law regulation of social relations, but about the legal impact on people's behavior. " Legal impact, - writes S.S., Alekseev, - a broader concept (than legal regulation), which characterizes all directions and forms of influence on public life» 2 .
The third group of social relations included in the subject of criminal law arises when citizens exercise the right to inflict harm while protecting themselves from socially dangerous encroachments with necessary defense, as well as in case of emergency and other circumstances that preclude the criminality of the act. These relations can be called regulatory criminal law relations (as opposed to protective ones), since they are formed on the basis of regulatory (entitlement) norms and regulate the behavior of a person, which is at the same time socially acceptable.
Relations regulated by criminal law are organically divided into two groups that are ambiguous in social and value perception: into necessary, positive, and therefore socially useful relations and deviant, negative and therefore socially harmful relations. If the first group of relations (in which the whole society or the vast majority of its representatives are interested) must be protected (protected), along with criminal law, by the whole set of moral, social and legal regulators, then the second group (the interest of criminally minded people) necessitates an imperious (coercive ) state intervention through the application of criminal law influence. These groups, as a result of their legal registration, acquire the status of legal relations, including criminal ones.
So, revealing the essence of the subject of criminal law regulation, we can distinguish two main and therefore universal behavioral spheres of human existence, in which the norms of criminal law are actively functioning: extreme necessity, detention of a criminal, reasonable risk, etc.); b) criminal behavior associated with the commission of a socially dangerous offense. The connecting component of these spheres is a deviant (abnormal) attitude, indicating the presence of a social conflict generated by a criminal act of one of the parties to these relations. It is this deviant attitude that is the subject of criminal law regulation, because only the presence of this type of relationship between people removes the safety trigger of the criminal law regulatory mechanism that is always on high alert. With the disappearance (elimination) of the deviant relationship, the regulatory function gives way to a protective function, which (unlike the regulatory function) has no stops. It operates continuously from the moment the relevant criminal law enters into force until its complete abolition.
The above allows us to conclude that criminal law is focused on two subjects. The first is the protection of the most important relations for society, regardless of the sphere of human activity (production, management, property, spiritual, etc.). The fact of committing a crime is a legal basis for the emergence of special relations between the offender and the victim, whose interests are represented by the state through its law enforcement agencies. The content of the second subject is just deviant (anomalous) relations that are contrary to the interests of not only individual citizens, but society as a whole.
The theory is firmly dominated by the opinion that the branches of law differ not only in subject matter, but also in the method of legal regulation. As you know, the method is determined by the specifics of the subject and therefore acts as a secondary one. It can be concluded that it reveals the features of the subject of regulation. Being inseparable, the subject and method differ functionally. If the first answers the question of what social relations should be regulated by the norms of criminal law, then the second shows how these relations are regulated. Consequently, the method of criminal law regulation is a set of techniques, ways of influencing criminal law on social relations that are its subject.
Features of the subject of criminal law regulation also determine the specifics of the method of criminal law. Since crimes are socially dangerous acts that cause (may cause) the most significant harm to certain social values (the interests and benefits of the individual, society and the state), the method of criminal law regulation is the prohibition to commit such acts. Other branches of law ensure the regulation of social relations, mainly by regulating behavior permitted in society, establishing the rights and obligations of the subjects (participants) of the relevant legal relations, as well as how they can perform actions that satisfy their positive interests (methods of permission and authorization) . Criminal law protects the established legal order from criminal encroachments by determining which socially dangerous acts are crimes, and by providing for penalties to be applied to persons who have committed crimes, i.e. violating the criminal law.
The method of criminal law regulation, in its most general sense, is expressed in the threat of application or in the application of measures of influence provided for by the criminal law, i.e. in the threat (both potential and realized) of bringing to justice a person guilty of a crime. Criminal liability, thus, acts as a specific method (a kind of social and legal instrument) for regulating (crowding out) deviant relations, which ultimately balances the interests of society and its members, ensures public order and behavioral discipline of people. The method, no doubt, is not limited to the application of criminal liability and punishment - criminal law, to a certain extent, has a positive effect on the most diverse spheres of human life.
It is known that the application of criminal law norms is carried out in three main forms: the implementation of the hypothesis of the norm of criminal law (“If you commit ...”), its disposition (“...what is described in the law ...”) and sanctions (“...then to you Appropriate legal action will be taken). However, the subjects of criminal law relations perceive the information of the relevant norm of criminal law from different positions and in different volumes. For the criminal, the sanction of the criminal law is of interest primarily. The content of the disposition, questions of correct qualification are addressed to the bodies of inquiry and investigation to a greater extent. The court is attracted primarily by the disposition and sanction of the article, where it finds an answer to the question of what was committed and what kind of criminal punishment is acceptable for this. From the point of view of the method of criminal law regulation, it is important to violate the conditions specified in the hypothesis of the norm, because only then there are all the factual and legal grounds for the implementation of criminal liability in full. And therefore, the action of the criminal law regulator can be described by a simple formula: "If a crime is committed, then (then) the criminal law mechanism must fulfill its regulatory functions in full."
Consequently, in a certain sense, the subject of criminal law is more multifaceted than the subject of legal regulation of other branches of law: it covers not homogeneous, but, on the contrary, a wide variety of legal facts (socially dangerous attacks) that reflect a violation of social relations regulated by other branches of law.
In this regard, criminal liability as a cumulative method of criminal law regulation includes two aspects of influencing people's behavior: negative and positive.
The negative (retrospective) aspect of the method of criminal law regulation involves a negative assessment of antisocial behavior when the subject commits a crime. In such cases, as already noted, deviant (anomalous) relations arise that must be eliminated, ousted, transformed, if possible, but normal, useful relations. To solve this problem, it is necessary to implement a criminal legal threat, that is, to bring the offender to criminal liability. In such cases, criminal liability comes retrospectively, regarding the already committed criminal act, for censure, condemnation and punishment of the perpetrator.
The positive (prospective) aspect implies a positive assessment of behavior in which people's actions are consistent with those objectively necessary requirements that are protected by the entire set of social and legal regulators. This indicates that a person has not only mastered the norm of behavior and "listens" to the voice of public conscience, but also does it with zeal and goodwill, for which he deserves official approval and social moral encouragement. Such a positive manifestation of criminal responsibility is turned to the future and is promising in the sense that it contributes to the consolidation of a personal stereotype in the form of a habit of acting law-abidingly.
Thus, the negative aspect of the method convinces people of the senselessness of criminal behavior that entails criminal liability, while the positive aspect indicates the usefulness of a lawful way of life.
It can be concluded that criminal law, influencing its subject by its inherent method of regulation, is designed to ensure the inevitability of criminal liability and punishment. It should be an important means of resolving contradictions between the individual and society, when such contradictions are expressed in the form of a crime. This determines the tasks facing criminal law.
2.3. Tasks of criminal law regulation
The specificity and content of criminal law are determined by the tasks facing this branch of law. The social value of criminal law consists primarily in the protection of social relations, namely: the peace and security of mankind, the individual, his rights and freedoms, property, the natural environment, public and state interests and the entire legal order from criminal encroachments. To carry out these tasks, criminal law and legislation establish the grounds and limits of criminal liability, determine which acts dangerous to the individual, society and the state are recognized as crimes, and fix the types of punishment and other measures of criminal legal influence. In other words, criminal law solves these tasks on the basis of the implementation of protective and regulatory functions. Based on the social purpose of criminal law, it turns out that society and the state entrust it with the task of protecting the entire system of social relations from criminal encroachments. At the same time, those from whom public relations are protected cannot be considered outsiders (outcasts) for these relations by people. They are carriers, participants, and often active creators of these relations. Therefore, criminal law not only protects social relations from criminal encroachments, but also affects the consciousness and behavior of the subjects entering into these relations.
At the present stage, Russian criminal law (primarily its Special Part) is developing taking into account the following main trends. First, taking into account the provision of an effective fight against organized crime, terrorism, as well as the most dangerous forms of crime - violent, corruption, recidivism. Secondly, taking into account the narrowing of criminal repression against juvenile offenders, as well as the predominant application of criminal law sanctions that are not related to deprivation of liberty (fines, correctional labor, deprivation of the right to hold certain positions or engage in certain activities, conditional sentence) for crimes, not being heavy and especially heavy.
Thanks to the protective and regulatory role, criminal law (in combination with other factors of a spiritual, economic, political and ideological nature) also performs the task of preventing (preventing) crimes, eliminating the causes that give rise to crime. The prevention of crimes by criminal law means should be considered in two aspects: firstly, from the point of view of general prevention under the influence of the criminal law mechanism and, secondly, from the point of view of private prevention through criminal law influence on the perpetrators of crimes. Hence it is obvious that prevention is the other side of the protective task.
In other words, the norms of criminal law perform protective, preventive and educational tasks, first of all, by demonstrating their existence. However, it would be an illusion to believe that a norm (including criminal law) has a deterrent effect, the application of which is only an abstract possibility. Themis, according to the remark of M. I. Kovalev 1, should not appear in the form of a weak old woman, who can only shake her finger at her disobedient great-grandson, while saying: “Oh, you scoundrel, look at me.” Justice is obliged to use the entire arsenal of its means to combat crimes, only in this case it is able to adequately perform its basic social functions. However, the criminal law, turning its punitive function to the guilty, must always be based on the strict observance of principles, for only in this case can it act as a regulator of public life.
The tasks of criminal law in accordance with Part 1 of Art. 2 of the Criminal Code are: 1) protection from criminal encroachments of the interests of the individual, society and the state; 2) prevention of crimes (on the part of convicts and other persons prone to unlawful behavior).
Since the task of criminal law is the protection of the above-mentioned interests from criminal encroachments, by its very essence it is a protective branch of law. Consequently, in comparison with other branches of law that act as a regulator of social relations, criminal law, without interfering in this process, is mainly designed to protect law-protected interests from harm - human rights and freedoms, property, public order and public safety, the natural environment, the constitutional system of Russia, as well as to help ensure the peace and security of mankind.
The task of preventing crimes means that the criminal law, which, although it does not affect the causes and conditions of crimes, nevertheless performs a preventive role - it deters persons who are prone to unlawful behavior from committing criminal acts. This task is being implemented in two relatively independent directions - firstly, the prevention of crimes by convicts, and secondly, other persons prone to committing them. This task is achieved mainly due to the psychological impact on the minds of people - the intimidation of persons prone to committing crimes, possible criminal punishment. And although the threat of punishment as a preventive factor is all the more effective, the more severe punishment is established for a specific crime, the main thing is not this, but how inevitable the punishment is applied to those guilty of crimes. In other words, the implementation of the task of crime prevention is ensured both through the threat of possible criminal punishment and (mainly) the actual application of criminal law sanctions.
Naturally, the social and value possibilities of criminal law are not unlimited, they have their own reasonable limitations. No matter how perfect the system of criminal law and its individual divisions, it is not able to eradicate those causes of crime that are outside the criminal law space.
The implementation of the tasks of criminal law is ensured, firstly, by the fact that the criminal law establishes the basis for criminal liability - the commission of a crime by a person (see Article 8 of the Criminal Code), and secondly, by determining the range of criminally punishable acts, as well as establishing the types of punishments and other measures of a criminal law nature that are applied when they are committed. Thus, it can be concluded that the tasks assigned to criminal law (law) can be ensured (realized) both by the very fact of the existence of the norms of this branch of law, and on the basis of the application of coercive measures by authorized state authorities (preliminary investigation bodies, court authorities executing criminal penalties).
2.4. Principles of criminal law
Criminal law only fulfills its main socio-moral and organizational-legal mission when it is guided by the principles developed by the centuries-old worldly wisdom of previous generations.
The criminal law principles formulated in Art. 3-7 of the Criminal Code, define the “physiognomy” of the Russian criminal legislation and are closely connected with criminal policy - a set of ideas, views that determine the direction of the state in the field of combating crime. The principles of criminal law were formed with the process of historical development of this legal branch, comprehended by science and recommended by it for direct fixing in the norms (provisions) of the criminal law - in the Criminal Code. For quite a long time, the principles of criminal law were not reflected in the text of the criminal law, retaining their significance as scientific categories recognized by the legislator and law enforcement practice as a bunch of human experience. Although it should be noted that the meaning of the principles of criminal law was not always interpreted in strict accordance with their content, and moreover, at some stages of the existence of domestic criminal law, the universal meaning of its principles was not officially recognized.
The principles of criminal law (legislation) form an integral system. There are no more or less significant ones among them, they are all equally important, and their dialectical interaction with each other is taken into account by the legislator when formulating criminal law prescriptions 1 . The following principles are formulated in the Criminal Code: legality (Article 3), equality of citizens before the law (Article 4), guilt (Article 5), justice (Article 6), humanism (Article 7).
Obviously, the following basic principles are inherent in criminal law.
The principle of legality, which follows from the provisions of the Universal Declaration of Human Rights: no one can be found guilty of a crime and subjected to criminal punishment except by a court verdict and in accordance with the law. In addition, the principle of legality is manifested in the fact that a person can be convicted only for the act committed by him, which contains the corpus delicti provided for by the criminal law. Further, the principle of legality requires that only the punishment provided for by the criminal law for this crime be applied to him. And, finally, it is possible to release from criminal liability (punishment) only if there are grounds and conditions specified in the law.
The principle of legality has two aspects. According to Part 1 of Art. 3 of the Criminal Code, the criminality of an act, as well as its punishability and other criminal legal consequences, are determined only by this Code. In this part this principle reflects the content of the principle known since the time of Roman law "nullum crimen, nullum poena" (no crime, no punishment without an indication of this in the law). This means that only the person who has committed a socially dangerous act, directly prohibited by the Criminal Code, can be held criminally liable. At the same time, punishment for a crime must be imposed by the court within the limits established by the Code at the time of its commission.
The second aspect of the principle of legality is related to the question of applying the criminal law by analogy, i.e. use to bring to criminal responsibility for an act committed by a person a norm of the law, which, although it does not cover it completely, is very close in content to it. By analogy, in the absence of the normative prescription required, in the opinion of the court, to resolve a particular case, it is possible to apply the norms in civil and civil procedural law, t.to. this is not connected with the imposition of measures of responsibility on the subject of legal relations. However, according to part 2 of Art. 3 of the Criminal Code, the principle of legality excludes the possibility of applying by analogy the norms of the criminal law. Thus, if a gap is established in criminal law (for example, in the absence of a rule prohibiting, under threat of punishment, an act committed by a person that harms law-protected interests), the norm of the Special Part closest in content cannot be used to bring this person to criminal liability. UK. Thus, despite the absolute prohibition in the federal legislation of the Russian Federation on human cloning (creation of human clone cells), direct responsibility for this behavior is not established in the Criminal Code. Therefore, it is impossible to apply the rule on responsibility for abuse of power (Article 286 of the Criminal Code) to the actions of a person who performs the relevant experiments on the territory of Russia, because this rule does not cover such illegal actions of researchers.
Filling gaps in criminal law when they are discovered is the prerogative of the legislator.
The principle of equality of citizens before the criminal law. The principle of equality of citizens before the law means that persons who have committed crimes are equal before the law and are subject to criminal liability regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances (Article 4 of the Criminal Code). This is exactly the same as Art. 19 of the Constitution of the Russian Federation and Art. 7 of the Universal Declaration of Human Rights of 1948, as well as other acts of international law.
The offender is subject to criminal liability regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Only one basis of criminal liability is possible - the presence in the committed act of signs of a specific corpus delicti. All persons who have committed the same crime shall be subject to the same criminal law. At the same time, the equality of all before the criminal law must be preceded by social equality.
The principle of equality of all before the law does not exclude, however, the immunity of a number of high officials of the state: the President of the Russian Federation, members of the Federation Council, deputies State Duma(Article 91, part 1 of article 98 of the Constitution of the Russian Federation), judges (part 1 of article 122 of the Constitution of the Russian Federation), prosecutors 1 .
However, the principle of equality before the law does not mean absolutely the same responsibility of all those who have committed crimes of the same type. Thus, when imposing criminal liability and sentencing, the court takes into account the sex of the perpetrator, his official and financial position, the fact of conviction for an intentional crime in the past. In addition, the law establishes that the commission of a crime using the trust placed in the perpetrator by virtue of his official position is recognized as an aggravating circumstance (paragraph “m” of part 1 of article 63 of the Criminal Code), and minor age is recognized as a circumstance mitigating punishment (para. "b" part 1 article 61 of the Criminal Code). A more severe punishment entails the commission of a crime by a person using his official position (part 3 of article 159 of the Criminal Code, part 3 of article 160 of the Criminal Code), as well as if it is committed by a parent, teacher or a person who is charged by law with the responsibility of raising a minor ( part 2 of article 150 of the Criminal Code, part 2 of article 151 of the Criminal Code). The death penalty and life imprisonment cannot be applied to persons who have committed a crime under the age of 18, to women, as well as to men who have reached the age of 65 at the time of sentencing (Articles 57, 59 of the Criminal Code).
Such a differentiated approach to the imposition of criminal liability cannot be recognized as contrary to the principle of equality of citizens before the law, since it fully meets another principle of criminal law - the principle of justice.
According to the principle of guilt (its other name is the principle of subjective imputation), a person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences that have occurred in relation to which his guilt has been established (Part 1, Article 5 of the Criminal Code). Objective imputation, i.e. criminal liability for innocent harm (no matter how significant it may be) is not allowed under Russian criminal law.
This principle is reflected in the legislative definition of a crime, which is characterized as a guilty act (Part 1, Article 14 of the Criminal Code). Consequently, criminal liability cannot be imposed on a person who caused very serious harm to law-protected interests, if he acted innocently, i.e. without intent or negligence.
The principle of the inevitability of criminal liability is that the person who committed the crime is subject to punishment in the criminal law order. The latter should be understood as the timely bringing of the offender to justice, and the fact that no one should have privileges before the criminal law. If a crime is committed, the perpetrator must be justly punished regardless of any circumstances. In the criminal law space of the state there should not be “elitist” (in
including deputy) zones, and everyone who commits a crime must understand that a fair and severe punishment is inevitable for him.
The principle of personal responsibility finds its expression in the fact that a person is responsible only for what he has done (created), and the operation of this principle does not contradict criminal liability with complicity, in the presence of which all perpetrators are criminally liable for a jointly and concertedly committed crime "in solidarity ". Only a natural person can bear criminal liability.
The principle of culpable liability implies that a person is responsible only for the act and its consequences, caused by it intentionally or by negligence.
The principle of justice means that the criminal punishment or other measure of criminal legal influence applied to the offender must correspond to the severity of the crime, the degree of guilt and personal characteristics that manifested in the criminal act committed by him.
The principle of justice according to Art. 6 of the Criminal Code means that the punishment and other measures of a criminal law nature applied to the person who committed the crime must correspond to the nature and degree of social danger of the crime, the circumstances of its commission and the identity of the perpetrator. Justice in criminal law - “criminal-legal proportionality” - is almost never actual proportionality, since the legislator, when establishing sanctions for an act, is guided by political, ideological, material, moral considerations, i.e., primarily utilitarian considerations 1 .
In the theory of criminal law, as a rule, the understanding of the principle of justice comes down to sentencing 2 . However, justice in criminal law is expressed in the fair formation of a circle of criminal acts, and in the definition in the law of a fair sanction for an act that is prohibited by them 3 . In other words, the principle of justice covers both the sphere of law enforcement and the sphere of lawmaking. In relation to the field of lawmaking, this provision should be expressed in the fact that sanctions for crimes of greater public danger should be more severe than sanctions for less dangerous crimes.
This principle should also be understood in the sense that no one can bear criminal liability twice for the same crime.
The principle of democracy, although not in full, is manifested in criminal law in various forms of participation of representatives of public associations and individuals in the imposition of a criminal sanction, its execution and, in particular, in the release from criminal liability and punishment.
The essence of the principle of humanism lies in the recognition of the value of a person (however, not only a criminal, but, first of all, the one who suffered from him). In particular, it is expressed in the fact that a criminal measure entailing a significant infringement legal status convict pursues the only goal - to protect the interests of others, law-abiding citizens, from criminal encroachments. In order to positively influence the perpetrator, the minimum necessary measure of criminal punishment should be applied to him. From these positions, it should be recognized as quite humane the provision according to which an act does not entail criminal liability, which, although formally contains the elements of a crime, is not socially dangerous due to its insignificance.
The principle of humanism finds an underlined expression in Part 2 of Art. 7 of the Criminal Code, according to which “punishment and other measures of a criminal law nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation human dignity". With this in mind, the Russian Criminal Code does not and cannot introduce cruel, painful and disgraceful types of punishment. Despite the fact that certain punishments provided for in the Criminal Code are very severe (for example, the death penalty, life imprisonment), the principle of humanism, on the one hand, limits their use in the sanctions of the articles of the Special Part of the Criminal Code (there are only five of them - Part 2 of Art. 105, art. 277, 295, 317, 357), and on the other hand, it excludes application to persons who have committed a crime under the age of 18, to women, as well as to men who have reached the age of 65 by the time of sentencing (Art. 57, 59 of the Criminal Code).
Criminal-legal characteristics of giving a bribe Subject, methods and principles of penal law
First of all, the question arises about the name of this branch of law. Depending on whether it is based on crime or punishment, it is called strafrecht (Germany), criminal law (England, USA), pravo karne (Poland), criminal droit (France), etc. As for the question why this branch in Russia and a number of CIS countries is called criminal law, some sources note that the term “criminal” comes from the word “head”, one of the meanings of which in Russian was “killed”. For example, in the Pskov charter, "golovshchina" meant murder (Art. 26, 96-98). Since in ancient Russian sources criminal liability was based on the custom of blood feud, the guilty, for example, in the murder had to answer with his head.
For the first time, the concept of "criminal" at the legislative level was used in the Code of Laws of the Russian Empire in 1832, prepared by M.M. Speransky and his assistants. The 15th volume of the Code outlined the criminal and criminal procedural laws.
In the future, it was used when naming all subsequent legislative acts that regulated the responsibility of persons who committed a crime: the Code of Criminal and Correctional Punishments of 1845, the Criminal Code of Russia of 1903, the Guiding Principles on the Criminal Law of the RSFSR of 1919, the criminal codes of the RSFSR of 1922, 1926, 1960, Basic Principles of the Criminal Legislation of the USSR and the Union Republics 1924, Fundamentals of the Criminal Legislation of the USSR and the Union Republics 1958
Criminal law is primarily understood as one of the leading branches of Russian law as a system of norms that: 1) establishes the basis and principles of criminal liability; 2) determines what acts dangerous to the individual, society or state are recognized as crimes and 3) provides for the types of punishments and other measures of a criminal law nature for committing crimes.
This concept also means one of the branches of legal science as a certain system of scientific knowledge about criminal law, about a crime and its elements, punishment and its types, as well as other measures of criminal legal influence on persons who have committed a crime.
And, finally, criminal law is understood as an academic discipline, the subject of study of which is the criminal law, crime, its composition, punishment, its types and procedure for appointing, the grounds and conditions for the application of other measures of a criminal law nature, the history of the criminal legislation of Russia, as well as the main provisions of the criminal legislation of foreign states.
Criminal law must not be confused with the concept of criminal law. The criminal law is the main one, since according to Part 1 of Art. 1 of the Criminal Code of the Russian Federation, the criminal legislation of the Russian Federation consists of the Criminal Code. At the same time, for the correct application of its provisions, it is necessary to take into account the Constitution of the Russian Federation, other legislative acts, as well as the interpretation and application of the criminal law by the courts.
Being closely interconnected with the constitutional, administrative, civil, criminal procedure, penitentiary and other branches of law, criminal law is nevertheless an independent branch of Russian law, since it has its own subject matter, methods of legal regulation characteristic of it and performs only those characteristic of it. tasks.
True, another opinion was substantiated in the literature, according to which criminal law is deprived of an independent subject, since social relations protected by its norms are regulated by other branches of law and therefore it acts as an additional means of their protection, i.e. kind of "watchman".
However, it should be recognized that the conclusion about the non-independent nature of criminal law objectively downplays its social significance in modern society, since it is based on the approach to it as a purely repressive right that does not perform any regulatory functions.
Criminal law, as an independent branch of law, regulates social relations aimed at protecting the most important social objects or values - life and health, human and civil rights and freedoms, property, economic activity not prohibited by law, public safety and public order, the foundations of the constitutional order and security states, etc. - from criminal encroachments. We emphasize: not from any offenses, namely from crimes. The range of objects of criminal law protection, as well as the basis of criminal liability, i.e. committing a crime, reflect the specifics of the subject of criminal law and distinguish it from the system of other branches of Russian law.
In modern society, criminal law is regarded as a universal phenomenon, a means of protecting the most important social values from criminal encroachments. It is unacceptable to form criminal legislation and apply it in practice based on the interests of only one class, social group, and even more so of an individual, as was the case in slave-owning, feudal, bourgeois states until the middle of the 20th century. and during the Soviet period of development of Russia. The current Russian legislation ensures the protection of the rights, freedoms and legitimate interests, as well as the prosecution of any person who has committed a crime, regardless of gender, race, nationality, language, origin, property and official status, attitude to religion, beliefs, membership in public associations , as well as other circumstances.
Criminal law actually acts as a means of protecting the interests of an individual, society and the state from criminal encroachments, regardless of who commits them.
Like any branch of law, criminal law is a system of interrelated and structured according to relevant institutions of norms that regulate the basis and principles of criminal liability, determine which socially dangerous acts are recognized as crimes, and establish types of punishments and other measures of a criminal law nature for committing a crime. The totality of all criminal law norms and institutions is the content of criminal law.
The object or subject of criminal legal protection should be distinguished from the subject of criminal law. The content of the latter is the totality of social relations protected by criminal law. This, however, does not mean that absolutely all relations functioning in society are included in the object of criminal law protection.
The protection of many public relations (family, civil, labor, administrative legal relations) can be quite successfully ensured on the basis of the norms of these branches of law.
It is necessary to point out one more important circumstance: since many public relations protected by criminal law are also regulated by other branches of law (for example, civil, labor, etc.), they can be considered as an object of criminal law protection only if there are the most dangerous encroachments. on them. The increased, in comparison with civil, administrative and other offenses, the social danger of criminal encroachment just makes it necessary to protect the relevant social relations by criminal law means and allows us to consider them as an object of criminal law protection.
In the theory of criminal law, the question is discussed: to what extent should the prevalence of this or that antisocial behavior determine the inclusion of the corresponding social relation in the object of criminal law protection? N.F. Kuznetsova1 and A.V. Naumov2 give a seemingly paradoxical answer to it, according to which the mass nature of certain types of antisocial behavior is most likely an argument against including them in the circle of criminal acts. We must agree with A.V. Naumov, who believes that the number of criminal law prohibitions, and therefore the range of objects of criminal law protection, should be determined by a reasonable compromise between the legislative (in the form of a system of criminal law prohibitions) restriction of freedom and a certain permissibility from the point of view of criminal law of some forms of antisocial behavior (for example, hiding the fact of marriage registration when it is registered with another person).
The object of criminal law protection and the subject of criminal law cannot be opposed to each other. The first defines the scope of implementation of general preventive, protective and regulatory criminal law relations, i.e. establishes their possible boundaries, beyond which other legal, and possibly other relations operate. Therefore, the object of criminal law protection from the content side characterizes the subject of criminal law, i.e. determines the area in which the criminal law is valid and applied. And as for general preventive, protective and regulatory criminal law relations, they in their totality actually reflect the main directions for the implementation of the tasks of criminal law.
A correct understanding of the object of criminal law protection and the subject of criminal law is of fundamental importance for differentiating the application of criminal law, on the one hand, and other means, on the other, to persons leading an antisocial lifestyle, as well as for understanding the mechanism of the impact of criminal law on social life.
3. Method of criminal law regulation. If, on the basis of the subject of criminal law, we can answer the question of what social relations are affected by criminal law or what social values are subject to criminal law protection, then the method of criminal law regulation (or the method of criminal law) is designed to answer another, at least important question, namely, in what ways the criminal law ensures the protection of social relations regulated by it.
The subject and method of any branch of law are concepts, although they are not equivalent in their essence and content, but they are closely interconnected with each other. Features of the subject of legal regulation mainly determine the specifics of the method of legal regulation of social relations inherent in this branch of law. If, say, for civil law the dispositive method is the most characteristic, then in criminal law the main method is the prohibition contained in the sanctions of the articles of the Special Part and in a number of articles of the General Part of the Criminal Code of the Russian Federation.
In the legal literature, a method is usually understood as a set of legal means and ways of influencing social relations. In the scientific and educational literature, it is rightly noted that the method of legal regulation is characterized by a number of components, in particular: 1) the procedure for establishing rights and legal obligations; 2) the degree of certainty of the rights granted and the autonomy of the actions of their subjects; 3) selection of legal facts, entailing the emergence of a legal relationship; 4) the nature of the relationship of the parties in legal relations; 5) means of ensuring subjective rights.
The specificity of criminal law is expressed in the fact that the main methods of criminal law regulation are prohibitions and prescriptions. It is no coincidence that therefore most of its norms are prohibitive or prescriptive. Moreover, the ban follows from the sanctions of the articles of the Special Part and a number of articles of the General Part of the Criminal Code of the Russian Federation.
In the Criminal Code of the Russian Federation, we will not find a single norm in which a prohibition would be verbatim formulated according to the formula "such and such an act is prohibited." For illustration, let us turn to the wording of Part 1 of Art. 105 of the Criminal Code of the Russian Federation. "Murder, that is, the deliberate infliction of death on another person, is punishable by imprisonment for a term of six to fifteen years." Since there is a punishment for this act, it is therefore prohibited by law.
Some articles of the Criminal Code of the Russian Federation are prescriptive; they formulate the obligation of citizens in certain life situations to perform the actions provided for by law. Failure to comply with the relevant obligation entails criminal liability.
So, in Art. 124 of the Criminal Code of the Russian Federation provides for liability for failure to provide assistance to a patient without good reason by a person who is obliged to provide it in accordance with the law or a special rule, if this negligently entailed the infliction of moderate harm, serious harm to the patient's health or his death.
Less typical for criminal law is the method of permission. However, this method is also used by the legislator to regulate certain criminal law relations. For example, the norms of the Criminal Code of the Russian Federation on necessary defense, infliction of harm during the arrest of a criminal, extreme necessity and other circumstances excluding the principles of the act (Articles 37, 42) are empowering, i.e. permissible character. In these cases, the law provides subjective right citizen to take certain actions.
But whether he will use his right or not depends entirely on his discretion.
Along with the method of permission, the method of criminal law encouragement will also stand out (for example, when refusing further criminal activity, other forms of positive post-criminal behavior). The current Criminal Code of the Russian Federation has significantly strengthened the positive principles of criminal law by fixing the norms providing for the imposition of punishment in the presence of such mitigating circumstances (Article 62), exemption from criminal liability in connection with active repentance, with reconciliation with the victim (Article 75, 76), special types of exemption from criminal liability in accordance with the notes to certain articles of the Special Part of the Criminal Code of the Russian Federation (Articles 126, 204, 205, 210, etc.). Stimulation of voluntary renunciation of a crime and certain forms of active repentance makes it possible to eliminate the one-sided, punitive bias of criminal law, enrich the arsenal of means of criminal law influence on the perpetrators of a crime, and at the same time no less successfully ensure the solution of the problems of criminal law in specific situations.
The growing role of incentives is one of the trends in the development of criminal law in most modern states.
4. Tasks of criminal law. The subject and method of legal regulation are primarily determined by the tasks set by the legislator for a particular branch of law. The social purpose of criminal law is to protect, protect by its specific means of the individual, society and the state from crime.
Criminal legislation provides the legal framework for combating the most dangerous attacks on important social values, which the legislator considers as crimes.
Criminal law is a very sharp and effective tool in the fight against crime. The higher the level of crime, the more often grave and especially grave crimes are committed, the more significant the criminal law and the practice of its application become for society and individual citizens.
The tasks of criminal law and, accordingly, criminal law are set out in Part 1 of Art. 2 of the Criminal Code of the Russian Federation. It states that the objectives of criminal law “are to protect the rights and freedoms of man and citizen, property, public order and public safety, the environment, the constitutional order of the Russian Federation from criminal encroachments, ensuring the peace and security of mankind, as well as preventing crimes.”
The fundamental difference between the Criminal Code of the Russian Federation of 1996 is the change in the priorities of criminal law protection. If in the Soviet criminal codes, based on the class idea and, accordingly, on the class nature of criminal law, the protection of state and public interests was considered a priority, then in the current Criminal Code of the Russian Federation universal human values, personality, life and health, honor and dignity, as well as rights and freedoms human beings and citizens are protected as a matter of priority.
This is not about a declarative change in priorities for the protection of objects of criminal law protection. This approach of the legislator is consistently implemented in many norms and institutions of both the General and Special parts of the Criminal Code of the Russian Federation. For example, the first (in order of presentation) section of the Special Part of the Criminal Code of the Russian Federation of 1996 provides for criminal liability for crimes against a person, and not for state crimes, as was the case in Soviet criminal codes.
For the first time, the current Criminal Code of the Russian Federation reflects as its task the provision of peace and security of mankind. Despite the editorial feature, in this case, in fact, we are talking about a protective task, i.e. Russian criminal law is designed to protect the peace and security of mankind. However, taking into account the fact that the peace and security of mankind are more significant values even in comparison with the personality of an individual, it is necessary, in our opinion, to support the opinion expressed in the literature on clarifying the priorities of criminal law protection. First of all, criminal legislation should ensure the protection of the peace and security of mankind, and then the interests of the individual.
In addition to protecting public relations from criminal encroachments, criminal law, as follows from the wording of Part 1 of Art. 2 of the Criminal Code of the Russian Federation, is also called upon to fulfill the task of preventing crimes. When regulating the goals of punishment, the previously existing Criminal Code of the Russian Federation of 1960 (Article 20) singled out a private (special) prevention of crimes, i.e. new criminal acts on the part of the convict, and a general warning (on the part of other persons).
Although there is no such differentiation in the Criminal Code of the tasks of preventing new crimes, nevertheless, criminal law actually performs the tasks of both special and general prevention of crimes.
The task of special prevention of crimes is achieved mainly by applying to persons guilty of committing crimes, punishment or other measures of a criminal law nature (probation, release from punishment, etc.). The effect of a special prevention of crimes is achieved both by depriving the convict of the physical possibility of committing a new criminal act (for example, the appointment of imprisonment with serving it in prison), and by correcting the convict and forming in his mind a belief in increased responsibility for the recurrence of crimes.
At the same time, it should be emphasized that the severity of punishment imposed contrary to the criteria of its fairness cannot be considered as an uncontested means of solving the problem of special prevention of crimes. Taking into account the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator, the use of a criminal law measure other than punishment can be no less effective from the point of view of the task of special prevention of crimes. Therefore, it is no coincidence that judicial practice probation is widely used, which has actually become a weighty alternative to the imposition of real punishment, including in the form of imprisonment. Despite certain errors in it, sometimes associated with the unreasonable use of conditional sentences, the recidivism of crimes on the part of convicts on probation is lower compared to persons who have been sentenced to a real sentence of imprisonment.
Already in the XIX century. Efforts began to be made to find alternative punishment measures of criminal legal influence on persons who committed a crime, which resulted in the introduction of probation and probation into the criminal legislation of the United States, Australia, England, Belgium, Norway, New Zealand and a number of other states.
Back in 1894, Professor A.A. Piontkovsky noted that in the inclusion of the institution of conditional release in punitive systems, criminal policy saw not only one of the means to improve measures to combat crime, but also “one of the ways to eliminate their inherent shortcomings, which consist mainly in the excessive use of short-term imprisonment, in uniformity of punitive means of combating criminals of chance and criminals of profession, nature, shortcomings, which have as a consequence such a bleak phenomenon as an increase in recidivism.
As for the task of the general prevention of crimes, its solution is ensured both by the very fact of the operation of the criminal legislation, and by the application of punishment or other measures of a criminal law nature to the perpetrators of crimes (on the principle of imposing punishment on the person who committed the crime, so that others would be discouraged) .
Criminal law is one of the important means of implementing criminal policy, since only its norms define the basis and principles of criminal liability, criminality and punishability of acts, and other, in addition to punishment, measures of a criminal law nature are exhaustively established.
At the same time, criminal law also has a certain influence on the policy in the field of combating crime, since it is mainly carried out within the framework of the law. In other words, criminal law provides the legal basis for the implementation of criminal policy.
The main directions of criminal policy are defined in the Constitution of the Russian Federation and detailed in the norms of criminal legislation.
Of great importance are the norms of the Criminal Code of the Russian Federation that regulate the tasks of criminal legislation (Article 2), the principles and basis of criminal liability (Articles 3-8), defining the concept of a crime and categories of crimes (Articles 14, 15), punishment and its goals (Article 43), the system of punishments and their types (Articles 44-59), as well as other measures of a criminal nature (Articles 73, 79, 80, 80.1, 81-85, 92, 104, 104¹, 104², 104³).
In practical terms, the criminal policy of Russia is formed by the Federal Assembly of the Russian Federation through the adoption of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly of the Russian Federation. Within the framework of the relevant competence, the President of the Russian Federation and the Government of the Russian Federation take part in its formation.
Criminal policy is a broader concept than criminal law policy. Along with the latter, its content is made up of penitentiary and preventive policies.
Criminal law policy occupies a dominant position in the system of criminal policy, since it solves the most fundamental issues of combating crime - determining the basis for criminal liability, criminalization and decriminalization of acts, penalization and depenalization (exemption from criminal liability and punishment, etc.).
The following features of criminal law policy are mentioned in the literature: 1) reflection of the will of the law-abiding part of the population of Russia; 2) responding to changes in the socio-economic situation in the country by clarifying and changing the range of social relations subject to criminal law protection; 3) expansion in the new conditions of the arsenal of criminal law means of influencing crime; 4) implementation of a differentiated approach to various categories of crimes; 5) expanding the scope and scope of positive responsibility; 6) improvement of criminal legislation, taking into account socio-economic, political, moral and other factors; 7) conducting the fight against crime in accordance with state programs; 8) the formation of criminal law policy based on the awareness of current trends in crime throughout the world - its absolute and relative growth.
If in the Soviet period of the development of Russia the utopian task of eliminating crime in society was set before criminal policy, then at present it has more realistic guidelines, namely, keeping crime at a relatively tolerable level, establishing public control over it, and reducing its growth rate.
The social significance of criminal policy has increased significantly due to the need to strengthen the fight against organized and professional crime, the most dangerous criminal manifestations. This was manifested, for example, in the Federal Law of July 21, 2004 “On Amending Articles 57 and 205 of the Criminal Code of the Russian Federation”, which provides for life imprisonment, as well as significant terms of imprisonment for terrorism.
The criminal policy of modern Russia proceeds from the understanding of an indisputable fact: the possibilities of the criminal law and, accordingly, the criminal law means of influencing crime are limited, since their application does not eliminate the causes and conditions for the commission of crimes. Therefore, the most important directions in maintaining control over crime are: 1) the actual implementation of socio-economic transformations and, as a result, an increase in the material well-being of all members of society; 2) qualitative improvement of the moral, legal and aesthetic education of citizens; 3) crime prevention; 4) elimination of the causes and conditions that give rise to them.
Crime prevention is the most preferred direction in the fight against crime from the point of view of the interests of society and individual citizens, since it allows you to prevent the harm that is caused as a result of the commission of crimes.
The application of punishment, other measures of a criminal law nature should be considered as a forced and at the same time natural reaction of society to cases of crimes.
The system of criminal law and its place in the general system of law
The norms of criminal law are concentrated only in the Criminal Code of the Russian Federation (Article 1), and the norms of criminal law are enshrined not only in the Criminal Code of the Russian Federation, but also in the Constitution of the Russian Federation and international legal acts ratified by Russia.
The system of criminal law can be considered from the point of view of: 1) the nature of criminal law relations; 2) its sources; and 3) the structure of criminal law.
According to the content of criminal law relations, three main elements of criminal law can be distinguished: 1) criminal legislation; 2) lawmaking and 3) law enforcement. The relationship between criminal law and law enforcement is more than obvious, since the courts and other law enforcement agencies in the field of criminal justice operate on the basis of its norms. It is not so obvious that it can be seen between criminal legislation and lawmaking in this area. In this regard, it must be borne in mind that the legislator, when making certain decisions to supplement and amend the relevant provisions of the criminal law, must proceed from all its existing norms. For example, he cannot include in the sanction of an article of the Special Part of the Criminal Code such a punishment that is not provided for in the list of punishments (Article 44 of the Criminal Code of the Russian Federation).
The criminal law of the Russian Federation includes a number of sources. According to Part 1 of Art. 15 of the Constitution of the Russian Federation, it has the highest legal force, direct effect and is applied throughout the territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation. And in accordance with part 4 of the same article, the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those stipulated by law, then the rules of the international treaty shall apply.
The provisions of the Constitution of the Russian Federation, generally recognized principles and norms of international law, as well as international treaties of the Russian Federation are taken into account in the process of lawmaking, i.e. in the preparation and adoption of new legislative criminal legal acts.
They should also be taken into account in law enforcement.
The general part of criminal law includes rules governing:
- tasks, structure, operation of the criminal law in time and space, the basis and principles of criminal liability (Articles 1-13 of the Criminal Code of the Russian Federation);
- the general concept of a crime and its elements (articles 14-36 of the Criminal Code of the Russian Federation);
- circumstances excluding the criminality of the act (Articles 37-42 of the Criminal Code of the Russian Federation);
- punishment, its appointment (Art. 43-72, 721, 88-89 of the Criminal Code of the Russian Federation);
- exemption from criminal liability and punishment (Articles 73-85, 92-93 of the Criminal Code of the Russian Federation), criminal record (Articles 86, 95 of the Criminal Code of the Russian Federation);
- other measures of criminal law influence, grounds and procedure for their application Art. 87, 90-91, 97-1043 of the Criminal Code of the Russian Federation).
The norms of the Special Part of Criminal Law provide an exhaustive list of socially dangerous acts that are recognized as crimes, i.e. a list of types of crimes with a description of their individual characteristics (their common features are reflected in the General Part of the Criminal Code of the Russian Federation), as well as sanctions for their commission. In some scientific and educational publications, a mixture of sanctions and punishments is allowed. Indeed, in the sanction of the norms of the Special Part of the Criminal Code of the Russian Federation
punishment(s) are provided for, however, in addition to punishment, they also imply a prohibition on the commission of an act provided for in the disposition of the relevant norm.
Depending on the object of the criminal encroachment, the components of specific crimes are distributed in the Special Part of the Criminal Code of the Russian Federation into sections and chapters.
Just as it is impossible to bring to criminal responsibility only on the basis of the norms of the General Part of the Criminal Code of the Russian Federation, so it is impossible to correctly resolve this issue only on the basis of one or another article of its Special Part, i.e. without regard to the provisions of the General Part. The system of criminal law consists of two main, interconnected and obligatory for the legislator and law enforcer subsystems of the General and Special parts.
Ignoring by the court of certain provisions of the General or Special parts of the Criminal Code of the Russian Federation usually leads to gross violations of the law.
Along with criminal law norms as separate generally binding rules formulated in an article or part of an article of the Criminal Code of the Russian Federation, its institutions are traditionally distinguished in criminal law.
The institution of law is usually understood as a set of closely interconnected norms that regulate social relations that are close in content or one side of a particular social relationship. They are usually divided into general and sub-institutions.
The system of criminal law as a whole is determined by five general institutions: 1) criminal law; 2) a crime; 3) circumstances excluding the criminality of the act; 4) punishment and 5) exemption from criminal liability and punishment. In turn, these institutions include certain sub-institutions. For example, the institute of crime combines such sub-institutions as the concept and categories of crimes, the plurality of crimes, the subject of the crime, guilt, unfinished crime, complicity in a crime.
Thus, the system of criminal law cannot be likened to a set or a set of unrelated legal norms. In this case, we should talk about the system of institutions of criminal law, which in turn are characterized by structural order and internal unity. Consequently, such unity is also characteristic of the norms that make up the content of each individual institution.
2. Place of criminal law in common system rights. The systemic nature of law determines both the relationship between the branches of law and their independence in relation to each other.
Since criminal law protects many social relations that are protected and regulated by other branches of law from criminal attacks, it occupies, we would say, a special place in the general system of law. In essence, one can trace the relationship of criminal law with most branches of Russian law. And this is no coincidence. If the norms of other branches of law protect the relevant public relations from less dangerous encroachments, then criminal law, in accordance with its protective function, ensures the protection of social relations already regulated by other branches of law from crimes, i.e. from the most dangerous attacks.
It is known that the system of law is composed of certain subsystems of branches of law. One of these subsystems is a block or set of industries that regulate the fight against crime, i.e. certain aspects of bringing to justice those who have committed a crime, and its implementation. In addition to criminal law, this block includes criminal procedure and penal law. Its systematizing or main element is criminal law, since only its norms provide for the basis of criminal liability, criminality and punishability of acts. In other words, the norms of criminal law regulate substantive issues related to the prosecution of persons who have committed crimes, and therefore it is called substantive law, while criminal procedural law is recognized as procedural. The norms of the latter regulate the procedural order of conducting an inquiry, preliminary investigation, judicial consideration of a criminal case, the rights and obligations of participants in a criminal process. The social purpose of criminal procedural law is to ensure, within a strict legal framework, including with respect for the rights and legitimate interests of participants in the criminal process, to ensure the establishment of objective truth in the case, in particular, the solution of the main issue - whether it exists or not in a particular case the basis of criminal liability, as well as the imposition of a just punishment or other measure of criminal legal influence or nature.
The main tasks of criminal and criminal procedural law are common. The difference between them lies in the means and methods of solving these problems. Their relationship can be likened to the relationship between content and form. It should be noted that compliance with the norms of criminal procedure law in the course of bringing to criminal responsibility is as mandatory as compliance with the provisions of the criminal law. A gross violation of certain norms of criminal procedural law is the basis for recognizing the sentence as unjust.
If criminal law provides for the basis of criminal liability, a list of specific offenses and their features, types of punishments, the procedure for their appointment, the basis for exemption from criminal liability and exemption from punishment, then penitentiary law regulates the procedure and conditions for the execution and serving of sentences, as well as the implementation two measures of a criminal law nature - probation and compulsory treatment. Criminal law, regulating the types, terms and content of punishments, decisively determines the subject of penal law. True, it should be noted that the subject of penal law includes, along with the execution of punishment, correctional influence. The goals of punishment, indicated in the criminal law (part 1, article 43 of the Criminal Code of the Russian Federation), in the same way determine the tasks and goals of the penitentiary legislation. The interaction of these branches of law is also carried out in the regulation of general institutions, for example, release from serving a sentence and prevention of recidivism of crimes.
Of the other branches with which criminal law is closely connected and interacts, constitutional law should be mentioned first of all. This relationship is realized at several levels. Firstly, the Constitution of the Russian Federation and federal constitutional laws enshrine basic provisions that are of fundamental importance for any branch of law, including criminal law (principles of law, fundamental rights, freedoms and obligations and guarantees for their implementation, the powers of higher authorities and administration and etc.). Secondly, if the norms of constitutional law provide for and guarantee every citizen of the Russian Federation a wide range of fundamental rights and freedoms, then criminal liability in accordance with the Criminal Code of the Russian Federation, on the contrary, is associated with a significant restriction of the legal status of the convict, the derogation of certain of his rights and freedom. Therefore, in Part 3 of Art. 55 of the Constitution of the Russian Federation specifically enshrines the provision according to which the rights and freedoms of a person and a citizen can be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and state security. Thirdly, the Constitution of the Russian Federation directly regulates issues of a criminal law nature - on the range of crimes for which the death penalty can be imposed (part 2 of article 20), on the retroactive effect of the law (article 54), on necessary defense (part 2 of article 20), 2 article 45), etc. It also contains some prohibitions, which are detailed in the Criminal Code of the Russian Federation. So, in part 5 of Art. 13 of the Constitution of the Russian Federation states: “The creation and activities of public associations are prohibited, the goals and actions of which are aimed at forcibly changing the foundations of the constitutional order and violating the integrity of the Russian Federation, undermining the security of the state, creating armed formations, inciting social, racial, national and religious hatred.” These provisions of the Constitution are specified in Art. 208, 239, 279, 280, 282 and others of the Special Part of the Criminal Code of the Russian Federation. Fourthly, the electoral system is regulated by the norms of constitutional law. For the most dangerous encroachments on electoral rights, as well as a number of other fundamental rights and freedoms of man and citizen, the Criminal Code of the Russian Federation provides for criminal liability (Articles 136-149).
Criminal law is also closely connected with administrative, labor, civil, business, financial, land, agricultural and a number of other branches of law. Interaction with them is carried out at two levels: 1) for less dangerous violations, liability arises in accordance with the norms of these branches of law (for example, administrative liability is provided for petty theft of another's property - Article 49 of the Code of Administrative Offenses of the Russian Federation), and for more dangerous encroachments on those regulated by these branches of law, public relations - criminal liability (for example, for theft, fraud, robbery, robbery, extortion and other encroachments on property - Articles 158-168 of the Criminal Code of the Russian Federation); 2) the dispositions of some norms of the Special Part are blanket in nature, since they refer to other laws or other regulatory legal acts of other branches of law (see Articles 142, 143, 146, 147, 194 of the Criminal Code of the Russian Federation, etc.). Therefore, in these cases, in order to correctly establish the signs of a crime, it is necessary to refer to the relevant norms of a particular branch of law.
Thus, criminal law, being an independent branch of law, is closely interconnected with other branches of law. This is precisely the systemic nature of law.
The interaction of criminal and international law takes place on the issues of the operation of the criminal law in space and in terms of persons, in particular, the responsibility of foreign citizens, extradition, i.e. extradition of persons who have committed a crime to another state, bringing national criminal legislation into line with international treaties, establishing responsibility for international crimes and crimes of an international nature.
Science of criminal law
However, the adoption of the Criminal Code of the Russian Federation did not remove all the “tensions”. The practice of its application over the following years has already revealed shortcomings, and even simply unsuccessful decisions. individual issues criminal law nature. It is no coincidence, therefore, that a number of significant changes and additions have already been made to the Criminal Code of the Russian Federation adopted in 1996 from 1997 to 2015. The most significant changes and additions to the Criminal Code of the Russian Federation were introduced by the Federal Law of December 8, 2003 No. 162-FZ "On the Introduction of Amendments and Additions to the Criminal Code of the Russian Federation". Although it must be admitted that some innovations in criminal law were due to the rapidly changing social situation in the country.
In the center of attention of Russian forensic scientists are essentially all the institutions and norms of criminal law. Particular interest in the science of criminal law is manifested in the study of the principles of criminal law, complicity in a crime, primarily its organized forms, punishment, its goals, sentencing, the nature and social purpose of measures of a criminal law nature other than punishment, theoretical foundations criminal law qualification, crimes in the sphere of economic activity, against public safety and public order, justice, etc.
Scientific conclusions and recommendations substantiated by scientists in last years, were the basis for a number of important decisions of the Plenum of the Supreme Court of the Russian Federation on various issues of criminal law (exemption from criminal liability, the imposition of criminal penalties by the courts, liability for banditry, murder, bribery and commercial bribery, etc.).
The science of criminal law also performs an ideological function.
It is designed to contribute to the legal education of citizens, to overcome the legal nihilism that persists among some members of society and to form in society an intolerant attitude towards crimes and other forms of antisocial behavior.
The science of criminal law, based on the methodology of dialectical and historical materialism, proceeds from the social conditionality and secondary nature of criminal law phenomena. Crime is not generated by some biological or cosmic factors; it has its origins in the interaction of social influences, society and the individual.
The criminal law and the measures of a criminal law nature provided for in it cannot by themselves eliminate the causes and conditions that give rise to crime, they are intended only to have a neutralizing effect on them.
2. Methods of science of criminal law. The science of criminal law uses a number of special research methods: 1) formal-logical (dogmatic or proper legal), based on the use of the rules of formal logic and grammar (syntax); 2) a sociological method involving surveys (questionnaires, interviews, expert assessments) of various categories of persons (convicts, the public, judges, law enforcement officials, etc.); 3) the criminal-statistical method, which makes it possible to ascertain the qualitative originality of criminal-legal phenomena and concepts through the collection and analysis of quantitative indicators; 4) the system-structural method involves the study of criminal law, its institutions and norms as certain systems of one or another community, i.e. as an integral set consisting of subsystems in which their constituent elements are structurally interacting with each other; 5) a comparative legal method based on the study of criminal law phenomena by comparing them with similar institutions and norms of criminal law foreign countries; 6) the historical and legal method, which prescribes to study criminal law categories, institutions and norms in their historical development, including from the standpoint of pre-Soviet, Soviet and post-Soviet criminal legislation in Russia; 7) mathematical and cybernetic methods used to process quantitative data on crime, the application of certain norms and institutions of criminal law.
The science of criminal law is in close relationship with other legal and other human sciences. First of all, I would like to emphasize the genetic connection between the sciences of criminal law and criminology, designed to study crime, its causes, the identity of the offender and crime prevention measures. Therefore, all institutions and norms of criminal law must be criminologically justified. At the same time, when studying criminological phenomena, it is necessary to take into account the categories and concepts developed by the science of criminal law. The science of criminology is actually called upon, along with the study of the general problems of crime and the personality of the offender, to find out the social effectiveness of criminal legislation in terms of solving the tasks assigned to it.
The interrelation of the science of criminal law with legal statistics and the sociology of criminal law seems to be very fruitful. The named scientific disciplines are called upon to provide quantitative data on crime, the identity of the perpetrators, the application of punishment and other measures of a criminal law nature for the scientific study of criminal law matter.
Quite naturally, the science of criminal law borders and interacts with the scientific disciplines of all branches of law, with which criminal law as an independent branch of Russian law in one way or another comes into contact - criminal procedure, criminal executive, constitutional, administrative, labor, business, civil, financial, land , agricultural, transport and other industries. The science of criminal law uses the achievements of all legal branches of law, the categories and concepts developed by them.
3. Science of criminal law in Russia. Most intensively in all law academies, at all law faculties of Russian universities, from Vladivostok to Kaliningrad, research is being carried out on problems of criminal law, which are often of fundamental importance for solving issues of the general theory of law (principles of law, elements of an offense, objective and subjective signs of an offense and etc.).
Pleiades of prominent forensic scientists fruitfully investigating the problems of criminal law are concentrated in the Institute of State and Law of the Russian Academy of Sciences, Moscow, St. universities.
Historically, criminal law is one of the oldest branches of law, although initially it was not isolated as an independent branch of the legal system. The exact origin of the name "criminal law" in Russian has not yet been clarified. The most plausible is the explanation that in ancient times they began to call such laws criminal, for the violation of which responsibility was provided for by the “head”, that is, by life. Now under criminal law is understood as a set of legal norms established by law and determining the criminality and punishability of acts, the grounds for criminal liability, the system of punishments, the procedure and conditions for their appointment, exemption from criminal liability and punishment.
The subject of criminal law is public relations protected by law, the encroachment on which occurs as a result of the commission of a crime. The subjects of criminal law relations are the persons who committed the crime and the state. The form of regulation of these relations is manifested in the establishment of criminal prohibitions, the violation of which should be brought to criminal responsibility, the use of other measures of state coercive influence and punishment. This is unique to criminal law. Its basis, like any other right, is the Constitution of the Russian Federation. The main normative source is the Criminal Code of the Russian Federation. Russian criminal law, for purely methodological reasons, is divided into two categories.
parts that make up a single inseparable whole: General and Special. The General Part sets out the main tasks, principles and institutions of criminal law, and the Special Part sets out specific offenses and penalties for each crime.
The tasks of criminal law are: the protection of human and civil rights and freedoms, property, public order and public safety, the environment, the constitutional order of the Russian Federation from crime, ensuring the peace and security of mankind, preventing crime. The successful implementation of these tasks is ensured by the observance of its principles, that is, the fundamental ideas enshrined in the norms of criminal law. Legislative confirmation was received by the principle of legality (Article 3 of the Criminal Code of the Russian Federation), equality of citizens before the law (Article 4 of the Criminal Code of the Russian Federation), the principle of guilt (Article 3 of the Criminal Code of the Russian Federation), justice (Article 6 of the Criminal Code of the Russian Federation) and humanism (Article 7 of the Criminal Code). RF).
essence principle of legality consists in the fact that only the criminal law in force at the time of the commission of the crime (Criminal Code of the Russian Federation) determines which acts are recognized as criminal, establishes their punishability and other criminal legal consequences (Article 3 of the Criminal Code of the Russian Federation).
The principle of equality of citizens before the law determines that persons who have committed a crime are equal before the law and are subject to criminal liability regardless of any conditions, circumstances, social status, etc. There are no privileges here for anyone. Everyone is equal before the law.
The principle of guilt is manifested in the fact that a person is subject to criminal liability for those crimes for which his guilt has been established (Article 5 of the Criminal Code). Subjective imputation (responsibility only in the presence of personal fault) is the cornerstone of modern criminal law in all democratic states. The imposition of criminal liability for innocent acts means a transition to the position of objective imputation, which is strictly prohibited by the current Criminal Code of the Russian Federation. Part 2 Art. 5 of the Criminal Code of the Russian Federation states: “Objective imputation, i.e., criminal liability for innocent infliction of harm, is not allowed.”
The principle of justice(Article 6 of the Criminal Code of the Russian Federation) is manifested in the fact that punishment and other measures of a criminal law nature must correspond to the nature and degree of public danger of the crime, the circumstances of its commission and the identity of the perpetrator. The manifestation of justice in the theory of law is interpreted in one of two aspects: how justice leveling (corresponds to the principle of equality of citizens before the law), and how distributive justice, which is consistent with the principle of justice, enshrined in Art. 6 of the Criminal Code of the Russian Federation. "Distributive justice" is that no one can be held criminally liable twice for the same crime. Therefore, the criminal liability of Russian citizens for crimes committed abroad is excluded if they have already been punished for it by the verdict of a court of a foreign state.
The principle of humanism interpreted in two ways:
Humanism for the victim, that is, the priority protection of a person, his life, health, dignity, property, presupposes the minimum of repression that is necessary to ensure the protection of the interests of a person and society from criminal encroachments and achieve the goals of correcting and re-educating a criminal;
And humanism in relation to the criminal. Punishment and other measures of a criminal law nature applied to a person who has committed a crime cannot be aimed at causing physical suffering or humiliation of human dignity.
The principle of humanism is clearly embodied in section V of the Criminal Code of the Russian Federation “Criminal liability of minors”, which, taking into account the age and psychology of juvenile offenders, provides for a significant mitigation of repressive methods of influence up to complete exemption from criminal liability. It is implemented in Art. 75-77, 79, 82 of the Criminal Code of the Russian Federation and others.
2. CONCEPT CRIMESAndHISCOMPOUND
The concept of a crime and the elements of a crime are two inextricably linked With other concepts characterizing the same phenomenon - a criminally punishable act. On the one hand, only a crime can have a set of legal characteristics that together form a crime. And on the other hand, only the presence of all legal features, the totality of which forms the corpus delicti, may indicate that the act assessed from the point of view of the criminal law is a crime. Thus, the concept of a crime is characterized mainly by the social essence of a criminally punishable act, and the corpus delicti reveals its legal structure, its necessary characteristics (properties, qualities).
The concept of a crime is one of the fundamental categories of criminal law. In the current Criminal Code of the Russian Federation in Art. 14 the definition of a crime is given: "A crime committed by a guilty socially dangerous act, prohibited by this Code under the threat of punishment." Thus, the legislator identifies four mandatory interrelated features: public danger (material feature); wrongfulness (formal sign); guilt and punishment.
It is emphasized that a crime is always a specific act of human behavior, which can be expressed in the form of action or inaction. A thought, an opinion, no matter how negatively they are assessed by the state and society, is not a crime.
Public danger - an objective property of a crime, which manifests itself in causing or possibly causing harm to social relations. Public danger has a quantitative and qualitative side. Quantitative - characterized by the degree of social danger. It is determined by the amount of harm caused (the amount of property damage, the severity of bodily harm), the degree of guilt (premeditated or suddenly arose intent), the degree of baseness of motives and goals. The nature of the public danger (qualitative side) is manifested in the content of the objects of criminal encroachment and the harm caused to them (material, physical, moral, organizational and managerial), features of the encroachment method (violent, non-violent, simple, qualified), types of guilt (intent or negligence), the content of the motives and goals of the crime (mercenary, personal, vile).
Wrongfulness means that a specific socially dangerous act is provided for in a separate article of the criminal law. If there is no article in the criminal law, then the act cannot be recognized as a crime. Since 1958, the application of the analogy of the law has been excluded from the criminal law.
Guilt implies a certain mental attitude of a person to a socially dangerous act and its consequences. Guilt is manifested in two forms: intent (direct and indirect); negligence (frivolity and negligence).
Under Punishment It implies not only the actual implementation of the punishment, but also the possibility of its appointment for the crime committed. It is not the punishment itself that matters, but the threat of punishment.
for the person who committed the crime. In real life, this manifests itself when a crime has been committed but not solved, nevertheless, the threat of punishment hangs over the criminal until the statute of limitations for the crime has expired, or the state, represented by the competent authorities, has considered that it is possible to re-educate the criminal without applying criminal sanctions to him. punishment.
All crimes are divided into different categories depending on the nature and degree of public danger and are divided into crimes of small gravity of medium gravity grave and especiallyserious crimes. Intentional and reckless acts are recognized as crimes of minor gravity, for the commission of which the maximum punishment provided for by the code does not exceed two years of imprisonment. Medium-gravity crimes are intentional and reckless acts, for which the maximum punishment provided for by the Code does not exceed five years in prison.
Serious crimes are intentional and reckless acts, for which the maximum punishment provided for by the Criminal Code does not exceed ten years of imprisonment. Especially grave crimes are intentional acts, for which the code provides for punishment in the form of imprisonment for a term of more than ten years or more severe.
punishment.
The category of a crime indicates the signs inherent in any crime. These signs make it possible to distinguish a crime from other types of offenses, but they cannot be used to distinguish specific crimes from each other, since these signs are common to all types of crimes. In order to single out a specific crime within the total mass of crimes, there is composition conceptva crime, which is a legislative model of presteps of a certain kind.
G Corpus delicti - it is a set of objective and subjective signs provided for by the criminal law that characterize the social danger of an act. The significance of the corpus delicti lies in the fact that, firstly, this is the only basis for criminal liability; secondly, the corpus delicti serves as a tool for qualifying crimes. The science of criminal law knows four signs of a crime: the object, the objective side, - the subject, the subjective side.
The object of the crime this is what the crime encroaches on - a social relationship protected by criminal law. In accordance with the current Criminal Code of the Russian Federation, objects are divided vertically into general, integrated, generic, direct. The theoretical classification provides for a five-link structure, where the place between the generic and the immediate object is occupied by the specific object. Horizontally, a direct object can be of the following types: main, additional, optional. All objects protected by criminal law are presented in sections, chapters and articles of the current Criminal Code.
The general object of the crime - it is the totality of all social relations protected by criminal law from criminal encroachments. An exhaustive list of social relations that form a common object of criminal law protection is quantitatively commensurate with the number of articles of the Special Part of the Criminal Code of the Russian Federation.
Integrated object- this is a group of social relations close in economic and socio-political content. At its core, it occupies an intermediate position between the general and generic object and serves as the basis for dividing the Criminal Code into 12 sections. It is the order of location of integrated objects that makes it possible to identify the priorities of the state in the criminal law protection of public relations.
Thus, in the current Criminal Code of the Russian Federation, the priorities of criminal law protection have shifted towards the protection of the individual. It is the personality that is currently acquiring the greatest social significance in public relations protected by criminal law, therefore, a group of these relations is placed in the first section of the Special Part of the Criminal Code of the Russian Federation (Section VII of the Criminal Code of the Russian Federation “Crimes against the Person”).
generic object - it is a set of homogeneous and interconnected social relations, taken under protection by a specially provided group of norms of the criminal law. The sign of a generic object is, first of all, the basis for the construction of the Special Part of the Criminal Code of the Russian Federation and its division into 19 chapters.
Theoretical (scientific) classification presupposes the presence of a specific object, which occupies a subordinate position relative to the generic one and dominates in relation to the direct one. It covers a system of homogeneous interconnected social relations, which are harmed or may be harmed by a crime.
view object serves as the basis for the subsequent legal allocation of a generic object. Thus, a long scientific discussion about such a specific object of economic crimes as economic social relations protected by criminal law led to the fact that Chapter 26 “Environmental crimes” appeared in the current Criminal Code of the Russian Federation. Thus, a new generic object received legal consolidation.
The main object of the crime is the social relation, the change of which constitutes the social essence of this crime and for the protection of which a criminal law norm has been issued providing for responsibility for its commission 1 .
Additional object is such public relations that, in principle, deserving independent criminal law protection, in relation to the goals and objectives of issuing this norm, are protected by criminal law only in passing, since these relations are inevitably put in danger of causing harm when an encroachment on the main object is committed 2.
Without violation of an additional object, a criminal-legal assessment of the act is impossible. In order for a socially dangerous act to be qualified as a criminal act, an encroachment on the main and additional objects is necessary. The difference between the additional object is that it lies in the plane of a different generic (integrated) object than the main one, when creating this norm, the legislator did not mean it in the first place, but was placed under the protection of the criminal law only in passing with the main object. Encroachment on an additional object does not constitute the social essence of this crime, although it infringes on it along with the main object.
Under Optional Object it is customary to understand such social relations that, when committing a given crime, quite often, although not necessarily, are threatened with harm, its violations are more or less typical for this type of criminal behavior, and its presence only affects the individualization of punishment, but does not change the qualification the main element of the crime.
The difference between an additional object and an optional object is that an additional object is always provided for within the framework of the main composition or qualifying features provided for by a specific article of the Criminal Code of the Russian Federation, and an optional object is taken into account when recognizing a punishment, but is not described in the disposition of the article.
Under the objective side of the crime is understood as a system of signs that determine the external form of a criminal act. Mandatory features include a criminal act (action, inaction), criminal consequences, a causal relationship between them, and optional (additional) features include time, place, method, tools, environment, and other external circumstances of the crime.
A criminal act is a conscious, volitional act of human behavior, the external side of which is either the commission of an act prohibited by law (action) or refraining from it (inaction).
Under the method of committing a crime understand the techniques and methods used by the offender. A situation is a situation, circumstances, conditions for the existence of someone or something. Time is characterized by the duration or duration of something. A place is a space that is occupied by someone or something.
Third sign composition, crime is the subject - a sane individual who has reached the age of 16 years established by criminal law, and for certain types of crimes - 14 years (Article 20 of the Criminal Code of the Russian Federation). The main features of the subject include: an individual;
sanity; reaching the legal age.
Sanity is such a state of a person's psyche, in which, at the time of committing a crime, he was able to realize the socially dangerous nature of his behavior and manage it. In connection with the adoption of the new Criminal Code of the Russian Federation and the appearance of part 3 of Art. 20 and Art. 22 of the Criminal Code of the Russian Federation, two institutions still insufficiently developed by the science of criminal law received legislative confirmation: age-related sanity (Article 22 of the Criminal Code of the Russian Federation); reduced (limited) sanity (Article 22 of the Criminal Code of the Russian Federation). Age sanity is the basis for the release of a criminal from criminal liability. So, part 3. Art. 20 of the Criminal Code of the Russian Federation states: “If a minor has reached the age provided for by parts one or two of this article, but due to a mental retardation not associated with a mental disorder, during the commission of a socially dangerous act, he could not fully realize the actual nature and social danger of his actions (inaction) or manage them, he is not subject to criminal liability. Age sanity is a mental state of a minor associated with a mental retardation, in which, during the commission of a crime, the perpetrator was not fully aware of the actual nature and social danger of his behavior or could not control him.
Limited sanity is such a mental state of a person in which the offender had a limited ability to realize the actual nature and social danger of his behavior or to control it due to a mental disorder or other mental anomalies. It should be emphasized that such a state does not exclude criminal liability and punishment.
The subjective side of the crime includes as a mandatory element fault in the form of intent or negligence. Guilt is the mental attitude of the subject of the crime to the act committed by him. Intent comes in two forms - direct and indirect. A crime is recognized as committed with direct intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility or inevitability of socially dangerous consequences and desired their occurrence. A crime is recognized as committed with indirect intent if the person was aware of the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want, but consciously allowed these consequences or treated them indifferently.
Negligence also appears in two forms - frivolity and negligence. A crime is recognized as committed due to frivolity if a person foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds, presumptuously counted on preventing these consequences. A crime is recognized as committed through negligence if the person did not foresee the possibility of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should have and could have foreseen these consequences. Today, 91 percent of detected crimes in the country are committed with intent, the rest by negligence.
optional features subjective side elements of a crime are motive and purpose. Motive - driven by internal needs motives that make a person determined to commit a crime. The goal is the desired criminal outcome.
The disposition of the article and the corpus delicti are not the same thing.
For example, the disposition of Part 1 of Art. 160 of the Criminal Code: "Assignment or embezzlement of someone else's property entrusted to the guilty" - does not reveal the entire content of this corpus delicti. It directly speaks of only two groups of signs: the objective side (appropriation or embezzlement) and the subject of the encroachment (other people's property, which is entrusted to the guilty).
For a complete picture of the composition of appropriation or embezzlement, it is imperative to find out the content of other features of the composition: the subject and the subjective side. For this, it is necessary to refer to the articles of the General Part of the Criminal Code, in particular to Art. 19 and 20. From them it is clear that any sane person who has reached the age of 16 can be the subject of embezzlement or embezzlement.
The subjective side of the theft can be revealed on the basis of an analysis of other elements of the composition and the entire act as a whole. In particular, it follows from this analysis that theft of property can only be a deliberate activity aimed at seizing someone else's property (seizure) in order to treat it as if it were one's own, in order to derive material benefit for oneself or others. As a result of the interpretation of the law, other signs of misappropriation or embezzlement are also established: infliction of material damage to the victim, gratuitous seizure and the absence of the perpetrator's intention to return this property at the time of the crime (see note to Article 158 of the Criminal Code of the Russian Federation).
If we collect all these signs together, then we can say that misappropriation or embezzlement is an unlawful, for mercenary purpose, deliberate seizure of property entrusted to the guilty person, committed by a materially responsible person who has reached the age of 16.
The above example quite clearly indicates that the corpus delicti is a much deeper concept than the disposition of the article of the Special Part.
3. PUNISHMENT AND CRIMINALA RESPONSIBILITY
The concept of criminal liability is a fundamental concept of criminal law. In science, there are various definitions of this category, but all of them are united by the fact that criminal liability is a criminal legal relationship that arises between the state represented by its law enforcement agencies and the person who committed the crime. In connection with the commission by a person of a crime provided for by a specific article of the Criminal Code of the Russian Federation, the state has the right to subject the offender to state
coercive influence and the obligation to apply state-coercive influence, provided for precisely by the article that the offender violated. A person who has committed a socially dangerous act has an obligation to bear responsibility to the state, i.e., to be subjected to state-coercive influence, and the right to apply precisely that influence, which is provided for by the criminal law norm violated by him.
There are different points of view on the issue of liability. Some authors associate this moment with the initiation of a criminal case 1 , while others - with the involvement as a defendant 2 . The most correct one seems to be the one where this moment is connected with the moment of entry into force of the guilty verdict. Criminal liability ends at the moment of repayment and removal of a criminal record. In view of the foregoing, it is possible to define criminal liability as state-coercive influence for a crime committed by a person, provided for by the criminal law norm and associated with a conviction that has entered into legal force.
The only exclusive basis for criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code. The basis of criminal liability arises from the moment of committing a socially dangerous act containing the corpus delicti. We can agree that from this moment criminal liability arises, but only as the right of the state to subject the alleged criminal to state-coercive influence. In this case, criminal liability has not yet received its full content. To impose it on a specific person, a legal document is needed on behalf of the state - a court judgment of conviction that has entered into legal force, which is a necessary legal form for the implementation of criminal liability in full, taking into account the mutual rights and obligations of the state and the criminal. /Punishment - a measure of state coercion, provided for by the Criminal Code, applied by a court sentence on behalf of the state to a person found guilty of a crime. A feature of criminal punishment is that it, in cases provided for by law, gives rise to a criminal record.
Punishment is applied in order to restore social justice, as well as to correct the convict and prevent the commission of new crimes.
The current Criminal Code has 13 types of punishment, which are divided into two groups: main (applied independently), and additional (used only in combination with the main ones) and measures applied as both main and additional.
Compulsory labor, correctional labor, restriction in military service, restriction of freedom, arrest, detention in a disciplinary military unit, imprisonment for a certain period, life imprisonment, and the death penalty are applied only as the main types of punishment.
A fine and deprivation of the right to hold certain positions or engage in certain activities are applied as both basic and additional types of punishment.
Deprivation of a special, military or honorary title, class rank and state awards, as well as confiscation of property, are applied only as additional types of punishment.
Sentencing is a lawful determination in accordance with the law in a court verdict that has entered into legal force to a specific person found guilty of this crime by the same court, the type and amount of repression necessary and sufficient to achieve the goals of repression, with the obligatory consideration of all legally significant features of the crime and the person who did it.
General principles of sentencing - these are the rules by which punishment should be applied to a specific person for a specific crime. These rules are based on the principles of criminal law.
The general principles of sentencing, expressed in Art. 60 of the Criminal Code, is not a declaration, but specific, generally binding directives for the court that imposes punishments: when imposing a punishment, take into account the nature and degree of social danger of the crime committed, the personality of the subject and the circumstances mitigating and aggravating punishments, as well as the impact of punishment on the correction of the convicted person and on living conditions.