Criminal law. The criminal acts excluding circumstances

In life, there are situations in which the behavior of a subject that externally falls within the scope of a crime and, under normal conditions, entails criminal liability, appears as socially useful. In a certain situation, inactivity or human action acquires a different content. This behavior is not covered by criminal law. Circumstances that exclude the criminality of the act occupy a special place in the legal doctrine. The question of their presence arises only when such behavior damages protected social relations and in the Criminal Code (Special part) an appropriate prohibition on the use of punishment is fixed. Let us further consider the concept and types of circumstances that exclude the criminality of the act.

General information

The system of circumstances excluding the criminality of the act plays an essential role in the process of establishing the wrongfulness of the conduct and the guilt of the person. Only by the will of the law-maker new or former facts are being introduced, in accordance with which persons committing outwardly wrongful acts can avoid using punishment against themselves. The concept and types of circumstances that exclude the criminality of an act are formulated in dispositive norms. This means that in each individual case, a person can choose between several models of behavior. In this case, the subject is not prescribed non-alternative and clearly defined behavioral acts. This approach fully reflects the principles of justice and humanism, indicated in Ch. 1 CC.

The notion of circumstances excluding the criminality of the act

There is a generally recognized definition of the category in question. Circumstances that exclude the criminal nature of the act and criminal responsibility due to lack of guilt and unlawfulness are acts / omissions that resemble those of the behavioral acts provided for in articles of the Criminal Code, which are expressed in damage to protected interests, but committed in the exercise of subjective law, the performance of legal duty Or official duty, subject to the conditions of their legality.

Distinctive features

In the Criminal Code of the Russian Federation there are specific articles that formulate the circumstances that preclude the crime of the act. The significance of each such factor is assessed individually, for each case separately. Along with this, there are common features inherent in all such behavioral acts. A general description of circumstances precluding the crime of the act is as follows:

1. In the performance of behavioral acts, listed in Art. 37-42 of the Criminal Code, there is always activity. Such actions cause significant damage to the protected interests, that is, to other persons, the state or society. In this connection, the question arises as to the possibility of applying punishment.
2. Behavior is almost always based on socially useful motivations. In some situations, such motivations are initiated by external factors. For example, circumstances excluding criminality may arise from the desire to protect themselves from dangerous encroachment or to protect from attack of another person, to detain the offender, to prevent as much damage as possible, and so on. In other situations, motivations arise under the influence of internal attitudes and are expressed in the desire to achieve a socially useful result.
3. If there are conditions of legitimacy, behavioral acts act as circumstances that exclude the criminal nature of the act and criminal, administrative, civil or disciplinary sanction.
4. Damage in case of non-observance of the conditions of legality established by the Criminal Code entails punishment. However, in view of the social usefulness of motives in the conduct of such behavioral acts, they are recognized as a crime with mitigating circumstances.

Historical reference

Circumstances that exclude the criminality of the act, signs of such behavior, were considered in the Soviet doctrine as a totality of a limited number of norms. At the same time, earlier legislative acts established more such articles. Thus, in the Code of 1903, circumstances were established to exclude the guilt of conduct and the wrongfulness of causing damage. The first group, for example, included:

• Lack of adequate age for the use of punishment.
• Painful disorder and so on.

The second group included:

• Extreme need.
• Compulsion.
• Necessary defense.
• Execution of the order or the law.

According to the Criminal Code of 1996 to the circumstances precluding the crime of the act, is:

1. Harm in the process of detention of persons who violate the law.
2. Necessary defense.
3. Mental and physical coercion.
4. Extreme need.
5. Implementation of the order or order.
6. Reasonable risk.

In addition to the above, the doctrine also names other circumstances that exclude criminality. They in particular are the consent of the victim, the performance of a professional duty, the implementation of subjective law and so on.

Essence

The criminal-legal significance of the institution in question is manifested in:

1. Elimination of punishment in the presence of legitimacy in behavior.
2. Mitigation of sanctions in the commission of an act that was initially committed as excluding the criminality of conduct, but did not subsequently become so in connection with violation of the limits of legitimacy or due to other factors (except Article 40, part 1 of the Criminal Code).
3. Applying punishment for improperly exceeding the boundaries of causing damage.

The latter provision applies only to certain circumstances that exclude criminality.

Traditional cases

The circumstances that exclude the crime of the act include several conditions. However, most of them entered the legislation relatively recently. To the traditional circumstances is the necessary defense. Researchers analyzing the history of the establishment of this institute indicate a tendency to expand the field of its application. The necessary defense as a circumstance excluding the criminality of the deed was first mentioned in the Elements of 1919. Some of its facilities were used in limited quantities in the Criminal Code of 1922. In the Basic Principles of 1924, the scope of the Institute's activity was substantially expanded. In particular, the necessary defense as a circumstance excluding the criminality of the act, was associated not only with the personality of the defending and other entities, from which the danger is assigned. The Code also introduced a reference to the protection of the interests of the Soviet state, revolutionary order and power. This formulation is duplicated in Art. 13 of the RSFSR Code of 1926. The Criminal Code of the present day also includes it in circumstances that exclude the crime of the act. The Russian Federation is a legal state in which conditions for observance of the law are created. The fulfillment of this task rests with various bodies and officials. For them, the exercise of the necessary defense acts as an official duty. Rejection of its execution is in itself an unlawful behavior that entails the appropriate punishment.

Obligatory conditions

Behavioral acts aimed at protecting themselves or other persons, the interests of the state, may act as circumstances excluding the criminality of the act, only in certain cases. Legislation formulates mandatory conditions, in case of none of which one of which the motivation of the subject ceases to be socially useful and falls under the Criminal Code. So, the attack must be socially dangerous, real, available. The right to protection arises when there is a threatening encroachment on protected interests. Usually, defense takes place when the criminal conduct of another person is criminally punishable. For example, protection is provided by repelling an attempt to commit murder, kidnap a person, rape a woman, rob a passer-by and so on. The availability of encroachment implies the beginning or the approach to the moment of its fulfillment. An attack must immediately and inevitably cause a public injury that is dangerous to society. When establishing guilt, the degree of reality of the attack is taken into account. The encroachment must be valid, not imaginary or supposed.

Damage when detaining the offender

This behavior is also included in circumstances that exclude the criminality of the act. For this category, their conditions of legitimacy are established. They are as follows:

1. Detention must be carried out against a person who committed an act that is subject to the Criminal Code, and not another Code. Objective signs of the act must be undeniable, obvious and obvious.
2. The use of violence is permissible only in the case of a firm belief that this particular person is guilty. For example, when a person is caught red-handed at the scene of a crime, witnesses will point to him, traces of an act will be found in his apartment or on his clothes and so on. As the basis for detention, there is a guilty verdict or a search warrant.
3. Damage to a person can be inflicted only if there is a real threat of his evasion from punishment. Such a danger can be testified, for example, by resistance, failure to comply with the requirements of a police officer, an attempt to hide, and so on.
4. Harm can be caused only for the purpose of carrying out his detention for subsequent delivery to the appropriate authority. In this case, the opportunity to evade responsibility is prevented, and the damage is a means of realizing this task. When harm is done to carry out lynching or to achieve other goals, it loses its legitimacy. In this case, the perpetrators of violence are punished under the Criminal Code.
5. The measures that are taken during detention should be commensurate with the dangers and nature of the crime committed and the identity of the perpetrator. For example, depriving a person of life who is trying to escape is considered legitimate only if he committed murder, took hostages, carried out a terrorist act, and so on.
6. The nature of the measures taken during detention should correspond to the conditions under which it is carried out. In this case, the intensity and method of resistance, the number of violators and ATC personnel, the time (night / day) and the place of events, the possibility of applying softer and painless means are taken into account.

Extreme need

This category is at the epicenter of constant discussions. Despite the fact that this institution is part of the traditional crime-excluding circumstances, the interpretation of the definition itself is subjected to critical assessments. First of all, experts note the inexpediency of breaking the normative material and placing it not only in Article 39 of the Code, but also in provisions relating to mental and physical coercion (Article 40, part 2). In the latter case, there are no statements of any specific features of extreme necessity, except for indicating a particular source of threat. This is by no means the only question left unaddressed in theory and practice. So, the legislation does not establish criteria for criminal-legal assessment of exceeding the extreme necessity limit.

Clarification of the definition

As an extreme necessity , a state is considered in which the aversion of a threat existing for the legitimate interests of a particular person or other entities, as well as society and the state, is done with causing harm to strangers. At the same time, the condition that in the existing situation the danger could not be eliminated by other methods should be observed, and the damage caused is substantially less than could be in case of inaction. In such situations, the circumstances excluding criminality are mostly socially useful. The danger that comes from these or other sources must:

• To create a threat to the rights, interests of the individual, society, citizen, health of the individual.
• To be available and real.
• To exist in circumstances where it is not possible to eliminate it in other ways that do not involve damage.

Compulsion

It can be mental or physical. Coercion of this kind is regulated by art. 40 of the Code. This circumstance occupies a separate place among all. The forced infliction of damage to the interests protected by law in exceptional circumstances is of a justification nature. This justifies the absence of criminal punishment and association with other circumstances that exclude liability. As a specific feature in this case is damage in the case of paralyzed or limited will and the lack of public utility of behavior.

Description of the state

Article 40 covers cases that are qualified with the application or rules of force majeure, or extreme necessity. If, under physical coercion, a subject could not manage his behavior, that is, perform electoral acts and, as a consequence, damage the protected interests, the punishment can not be applied. This is due to the fact that the person acted or was inactive under the influence of force majeure factors, insuperable force. And this, in turn, does not provide for guilt and motivated behavior. For example, a bound guard can not bypass the territory entrusted to him. Psychic coercion is always considered to be surmountable. This is explained by the fact that, regardless of the degree of intensity of impact, the subject retains the ability to manage his behavioral acts. Psychic coercion can be expressed by threats to use violence, cause moral / material harm and other warnings that can be executed immediately. Probably also direct influence on a mental status by means of psychotropic agents, hypnosis, sound signals and other. The goal of such coercion is the desire to persuade a person to harm the interests protected by law. In case of a surmountable (mental) impact, the subject chooses between the threatening damage and the one that is required from him to eliminate the existing threat. In this regard, when considering acts, the rules of emergency are used. Typical examples include the actions of a cashier who gives money to an attacker who threatens his weapon, the director of a banking organization who, under torture, gives the key to the storehouse and so on.

Reasonable risk

It consists in forming a probable danger for protected interests in order to achieve a socially useful goal. At the same time, there should be no possibility of obtaining such a result by non-risky, ordinary means. Risk is considered a person's right to seek, dare (for example, in the process of mastering a new technology in production, developing an innovative method of treatment, and so on). Every citizen has the opportunity to carry out research. It does not matter what extreme conditions it is in. That is why the 1996 Criminal Code uses the concept of "justified risk". Its scope in the current Code is significantly expanded. As the source that generates the probability of causing damage at a justified risk, the actions of the entity itself, which deliberately deviates from established and generally accepted security requirements when it achieves socially useful goals, act.

Conditions for lawfulness

They boil down to the following:

1. Damage to the interests protected by law is caused by the behavior of the risk-taker, which is aimed at obtaining a socially useful result.
2. The goal pursued by a person can not be achieved by other, safe means.
3. Negative consequences are realized risk only as a possible and a side effect of his actions.
4. Human behavior is based on existing skills and knowledge, which are objectively able in a particular case to prevent the occurrence of damage.
5. The subject undertook all appropriate measures, in his opinion, to prevent harm.

Implementation of the order / order

As a circumstance that excludes the crime of the act, this behavior was fixed for the first time in the current CC. However, in practice, it was almost always taken into account in the qualification of the behavior of subordinate employees executing orders or orders of their superiors. This circumstance is considered universal. It extends to all cases of damage when executing imperious demands in any branch of social activity.