Criminal law. Criminal circumstances

In life, there are situations when the behavior of the subject, externally falling within the scope of the crime and, under ordinary conditions, entailing criminal liability, acts as socially useful. In a certain situation, inaction or action of a person acquires a different content. This behavior is not covered by criminal law. Circumstances excluding the crime of deed occupy a special place in the legal doctrine. The question of their presence arises only when such behavior is detrimental to protected social relations and in the Criminal Code (Special Part) a corresponding ban on the application of punishment is recorded. Let us further consider the concept and types of circumstances that exclude the criminal act.

General information

The system of circumstances that exclude the crime of an act plays a significant role in the process of establishing unlawful behavior and guilt of a person. Only at the will of the lawmaker will new facts be introduced or the previous facts eliminated, according to which persons committing outwardly wrongful acts can avoid the application of punishment against themselves. The concept and types of circumstances that exclude criminal acts are formulated in the dispositive norms. This means that in each case, a person can choose between several behaviors. 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 chap. 1 of the Criminal Code.

The concept of circumstances excluding crime acts

There is a generally accepted definition of the category in question. Circumstances that exclude criminal acts and criminal liability due to the absence of guilt and unlawfulness are actions / inactions that are outwardly similar to the behavioral acts provided for in the articles of the Criminal Code, expressed in prejudice to protected interests, but committed in the exercise of subjective law, legal duty or official duty subject to the conditions of their legality.

Distinctive features

The Criminal Code of the Russian Federation contains specific articles formulating circumstances that exclude criminal acts. The value of each such factor is evaluated individually, for each case individually. Along with this, there are common features inherent in all such behavioral acts. The general characteristics of the circumstances excluding the criminal act are as follows:

1. When committing behavioral acts referred to in Art. 37-42 of the Criminal Code, there is always activity. Such actions cause significant damage to protected interests, that is, to other persons, the state or society. In this regard, the question arises about the possibility of applying punishment.
2. Behavior is almost always based on socially useful motivations. In some situations, such motivations are triggered by external factors. For example, circumstances precluding crime may arise from the desire to defend against a dangerous attack or to protect another person from attack, to detain the offender, to prevent the most significant damage, and so on. In other situations, motives arise under the influence of internal attitudes and are expressed in the desire to achieve a socially useful result.
3. If the conditions of lawfulness are present, behavioral acts act as circumstances that exclude criminal acts and criminal, administrative, civil or disciplinary sanctions.
4. Damage if the conditions of legality established by the Criminal Code are not respected entails punishment. However, in view of the social usefulness of motivations in the commission of such behavioral acts, they are recognized as a mitigating crime .

Historical reference

Circumstances excluding criminal acts, signs of such behavior, in the Soviet doctrine were considered as a combination of a limited number of norms. At the same time, previous legislative acts established more of this kind of articles. So, in the Code of 1903, circumstances were fixed that excluded the guilty conduct and the wrongfulness of causing damage. The first group, for example, included:

• Failure to reach the appropriate age for applying the punishment.
• Painful disorder and so on.

The second group included:

• An urgent need.
• Compulsion.
• Necessary defense.
• Execution of an order or law.

According to the Criminal Code of 1996, the circumstances excluding the crime of an act include:

1. Damage during the detention of persons violating the law.
2. Necessary defense.
3. Mental and physical coercion.
4. An urgent need.
5. Fulfillment of an order or order.
6. Reasonable risk.

In addition to the above, the doctrine names other circumstances excluding crime acts. In particular, they 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. Exclusion of punishment in the presence of lawfulness in behavior.
2. Mitigation of sanctions when committing an act that was originally committed as excluding criminal behavior, but which did not subsequently become such due to violation of the limits of law or due to other factors (except for Article 40, part 1 of the Criminal Code).
3. The application of punishment for unlawfully exceeding the limits of damage.

The latter provision applies only to certain circumstances precluding crime.

Traditional cases

Several circumstances apply to circumstances that exclude the crime of an act. However, most of them have entered the law relatively recently. Traditional circumstances include necessary defense. Researchers analyzing the history of this institute indicate a tendency to expand its scope. Necessary defense as a circumstance excluding the crime of an act was first mentioned in the Principles 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 was significantly expanded. In particular, the necessary defense as a circumstance excluding the criminality of an act was associated not only with the personality of the defender and other entities from whom the danger is averted. The Code also introduced a reference to the protection of the interests of the Soviet state, the revolutionary order and power. This wording is duplicated in Art. 13 of the Code of the RSFSR of 1926. The current Criminal Code also includes it in circumstances precluding criminal acts. The Russian Federation is a legal state in which the conditions for compliance with the law are created. The fulfillment of this task lies with various bodies and officials. For them, the implementation of the necessary defense acts as an official duty. Failure to perform it is in itself an unlawful conduct, punishable accordingly.

Mandatory conditions

Behavioral acts aimed at protecting oneself or other persons, the interests of the state, can act as circumstances that exclude the crime of an act, only in certain cases. Legislation formulates mandatory conditions, in case of failure to implement at least 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, cash. The right to defense arises when a threatening encroachment on protected interests arises. Usually, defense takes place with the criminally criminal conduct of another person. For example, protection is carried out when repulsing attempts to commit murder, kidnap a person, rape a woman, rob a passerby and so on. The presence of an assault implies the beginning or approaching the time of its commission. An attack must immediately and inevitably cause harm to society. In establishing guilt, the degree of reality of the attack is taken into account. The assault should be real, not imaginary or imagined.

Damage to the detention of the offender

Such behavior is also included in circumstances precluding criminal acts. For this category, its own conditions of lawfulness are established. They are as follows:

1. Detention should be carried out in respect of a person who committed an act falling within the scope of the Criminal Code, and not of another Code. The objective signs of an act must be indisputable, obvious and explicit.
2. The use of violence is permissible only in the case of firm conviction that it is this subject who is guilty. For example, when a person is caught red-handed at the crime scene, the witnesses will point to him, in his apartment or on his clothes, traces of the act will be discovered and so on. The basis for detention is a guilty verdict or a search order.
3. Damage to a person can only be caused if there is a real threat of his evading punishment. Such danger can be indicated, for example, by resistance, failure to comply with the requirements of a police officer, an attempt to hide, and so on.
4. Damage may be caused only with the purpose of carrying out his detention for subsequent delivery to the appropriate authority. In this case, the ability to evade responsibility is suppressed, and the damage caused acts as a means of realizing this task. In the event of harm to the implementation of lynching or the achievement of other goals, he loses his legitimacy. In this case, the perpetrators of violence are punished under the Criminal Code.
5. The measures taken during detention must be proportionate to the danger and nature of the crime committed and the identity of the perpetrator. For example, the deprivation of life of a subject who is trying to hide is considered legitimate only if he committed the murder, took hostages, carried out a terrorist act, and so on.
6. The nature of the measures taken during the detention must comply with the conditions under which it is carried out. In this case, the intensity and method of resistance are taken into account, the number of offenders and police officers, time (night / day) and the place of events, the availability of the possibility to use milder and less painful means.

Urgent need

This category is at the epicenter of ongoing discussion. Despite the fact that this institution is part of the traditional circumstances excluding crime, 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 the provisions relating to mental and physical coercion (Article 40, part 2). Moreover, in the latter case, there are no formulations of any specific features of extreme necessity, except for indicating a special source of threat. This is far from the only question that has remained unresolved in theory and practice. Thus, the legislation does not establish criteria for a criminal legal assessment of exceeding the limit of emergency.

Clarification of the definition

As a last resort , a state is considered in which the aversion to a threat that actually exists for the legitimate interests of a particular person or other entities, as well as society and the state, is carried out with harm to strangers. At the same time, the condition that in the existing situation the danger could not be eliminated by other methods, and that the damage caused is significantly less than it could be in the case of inaction, should be observed. In such situations, circumstances excluding crime are mostly socially useful. The danger that comes from various sources should:

• To create a threat to the rights and interests of a person, society, citizen, and individual health.
• Be cash and real.
• To exist in conditions when 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 takes a separate place among all. Forced damage to interests protected by law in exceptional circumstances is justifiable. This justifies the absence of criminal punishment and association with other circumstances that exclude liability. A specific feature in this case is the infliction of damage with a paralyzed or limited will and the lack of social utility of behavior.

Status Description

Article 40 covers cases that qualify using either force majeure rules or emergency. If, under physical coercion, the subject was unable to control his behavior, that is, to perform election acts, and as a result of which damaged the protected interests, then the punishment cannot be applied. This is due to the fact that the person acted or was inactive under the influence of force majeure factors, force majeure. And this, in turn, does not provide for guilt and motivated behavior. For example, the associated security guard cannot bypass the territory entrusted to him. Mental coercion is always considered surmountable. This is explained by the fact that regardless of the degree of impact intensity, the subject retains the ability to manage his behavioral acts. Mental coercion can be expressed as threats to use violence, to cause moral / material harm and other warnings that can be executed immediately. Likewise, a direct effect on the mental state through psychotropic drugs, hypnosis, sound signals, and more. The purpose of such coercion is the desire to persuade a person to harm the interests protected by law. In the case of an avoidable (mental) impact, the subject chooses between threatening damage and the one that is required of him to eliminate the existing threat. In this regard, when considering acts use the rules of emergency. Typical examples may include, in particular, the actions of a cashier who gives money to attackers who threaten him with weapons, the director of a banking organization, who gives away the key to the vault under torture, and so on.

Reasonable risk

It consists in the formation of a probable danger to protected interests in order to achieve a socially useful goal. At the same time, there should be no possibility of obtaining such a result with riskless, conventional means. Risk is considered a person’s right to search, daring (for example, in the process of mastering a new technology in production, developing an innovative treatment method, and so on). Every citizen has the opportunity to carry out research. Moreover, it does not matter in what extreme conditions it is located. That is why in the Criminal Code of 1996 the concept of "justified risk" is used. Its scope in the current Code is significantly expanded. The source of the probability of causing damage at reasonable risk is the actions of the subject himself, who deliberately deviates from the established and generally accepted safety requirements when he reaches socially useful goals.

Legal Terms

They come down to the following:

1. Damage to the interests protected by law is caused by the risk-taking behavior, which is aimed at obtaining a socially useful result.
2. The goal pursued by a person cannot be achieved by other, safe means.
3. Negative consequences are recognized by the riskier only as a possible and secondary option 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 has taken all appropriate, in his opinion, measures to prevent harm.

Execution of an order / order

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