Criminal law reveals in detail all options for the application of legislative norms. But sometimes there are situations when several criminal law articles apply to the same act. As a result, one is selected from several, but more suitable. Theoretical criminal law calls such situations the competition (conflict) of norms. Let us consider in more detail the definition and examples of conflict in legal practice.
Collision Definition
The concept of competition of criminal law is interpreted by lawyers and lawyers in different ways. Some consider competition as the legal regulation of a single legal relationship in several articles, in which only one of the rules applies. Other jurists interpret conflict of laws rules as a divergence in the application of one legal relationship in different situations.
Sometimes in the practice of law enforcement there are difficulties in determining which of the articles should be applied in a particular case. To resolve the uncertainty, the legislator gave an indication in the third part of Article 17 of the Criminal Code of the Russian Federation. If specific criminal offenses are governed by general and special rules and there is no aggregate acts as part of a crime, criminal liability shall be awarded under an article of a special nature.
A common feature of all competing norms in criminal law is their relevance to the same act. Moreover, in one of these articles the legal nature of the crime committed by the person is most accurately expressed. In this regard, similar articles do not completely coincide in content and volume.
Collisions can arise when there are contradictions in the law or in the logical presentation of the rules. Therefore, the law enforcer is faced with the main task of competing in criminal law - to resolve conflicts.
Signs of legal conflict
There are such signs of competition of criminal law norms:
- Collision - a specific relationship that arises between several institutions of law. Most often, such a confrontation occurs in relation to legal norms. But there are times when law enforcement officials are faced with conflicts affecting several acts. This may be instructions in the decisions of the Supreme Court or competition of the article and instructions in the decision, etc.
- Relations in the event of competition of legal norms in criminal law on the issue of regulating a certain relationship between participants. With regard to criminal law, the vast majority of cases consider conflicts with respect to a specific crime committed.
- A conflict arises only in cases where one specific factual legal relationship is regulated by several articles.
- Competitive rules are those that are in conflict with each other, that is, they imply rules of behavior that are mutually exclusive. In most cases, articles that are not partially agreed upon, as well as articles that completely coincide in content and volume, but differ in effect in time and space or in the effect of legal force, come into conflict.
Competition of norms and its types
Collisions of criminal law articles are divided into two main types: abstract and real. Abstract conflicts arise at the legislative level. They do not depend on whether there is a specific crime committed and a specific criminal case under consideration in this conflict.
An example is the competition between Articles 56 and 88 of the Criminal Code of the Russian Federation. In the first, the maximum term of imprisonment is twenty years, in the first - ten years for persons under the age of majority. These articles compete with each other (even if no specific criminal case is considered under this article).
Real competition arises in the process of considering specific and real criminal cases. Regardless of the type of collision, it must be overcome so that in the future there are no problems with law enforcement. Overcoming the conflict is the resolution of the existing discrepancy in each specific criminal case in the application of criminal law. The goal of resolving real competition is to select one article from several similar ones that relate to the same crime.
The process of overcoming criminal-legal competition of norms in Russian criminal law is a mechanism that includes conflict of laws, rules and principles of competition, as well as interpretation of legal principles of the criminal sphere.
Classification of types of collisions
In addition to the general division of the competition of articles into abstract and real, there are several more criteria for the division: according to the position of the legal system and legislation, according to the properties and place of consolidation.
According to the position of the legal system and legislation, the types of competition of norms are divided into intra-industry, inter-industry and inter-legal. According to the properties of competition, the norms of criminal law (the qualifications of conflicts should be familiar to all who practice law) are divided into spatial, temporal, hierarchical and informative.
At the place of consolidation, criminal law norms can compete in the ratio of general and special, general and exclusive, special and exceptional, and a conflict of special articles among themselves.
Positional collisions
The division of competition into intra-industry, inter-industry and inter-legal depends on the place and source of location of conflict norms. Intra-industry conflicts arise between articles related to the same branch of law. Lawyers provide for an internal division of this concept into types of competition of norms in criminal law:
- conflict between articles included in the General part;
- conflict between articles included in the Special Part;
- a conflict between articles, one of which is included in the General, and the other in the Special part of the Criminal Code of the Russian Federation.
Intersectoral competition can be described as legal relations that arise between prescriptions of the legal nature of different legal sectors (for example, criminal, penal, criminal procedure, administrative, constitutional and so on).
Intersectoral conflicts are divided into the following subspecies:
- conflict of constitutional and sectoral;
- conflict of substantive and procedural (i.e. articles of criminal procedural and criminal substantive law);
- a conflict of regulatory and protective (for example, a conflict of civil and criminal or tax law);
- collision of articles of a protective nature that relate to different legal sectors (for example, competition of administrative and criminal law norms).
Inter-legal competition appears in the relationship of legal norms that belong to different systems of law. They are divided into two subspecies:
- collisions of articles of domestic and international criminal law;
- conflicts of articles of criminal national law and foreign criminal law.
Property Collision Division
Lawyer Inogamova-Khegai divides the competition of criminal law into spatial, temporal, hierarchical and substantive. It also distinguishes norms of competition at the place of consolidation as separate types of competition.
Allocation of spatial competition is based on the relations of several criminal law norms that operate in different territories. The occurrence of spatial collisions is caused by three reasons:
- The spatial limitation of the laws of the criminal sphere only by the borders of the territory of one state.
- The spatial extent of the categories of certain types of crimes in space, because of which a crime can be committed on the territory of two or more states.
- Changing the boundaries of the state.
Temporal conflicts are competition between several legal norms that operate at different time intervals. This kind of competition of legal norms in criminal law is considered a conflict of laws in time, or a temporary conflict.
Hierarchical conflicts are relations between legal norms that have different legal force. In the criminal law sphere, there are very few such conflicts, since the sources of law in the criminal sphere are only acts that have the highest legal force, that is, laws. In this regard, hierarchical conflict as a concept is absent in criminal law.
But there are three types of modern hierarchical conflict norms:
- norms of national and international criminal law;
- norms of industry and constitutional criminal law spheres;
- conflicts of law and law.
Features of competition types of substantive criminal law are relations that affect general, special and exceptional norms. The problem of competition of norms having one industry affiliation arises due to differences in the volumes of legal regulation. This type of conflict is most common in the criminal law field.
Collisions are special and general
Competition of special norms in criminal law with general ones is the only kind that is allowed at the legislative level. Part 3 of Article 17 of the Criminal Code of the Russian Federation determines the priority of a special norm in relation to a general one.
An example of competition of norms in criminal law can be the ratio of paragraph “b” of part 2 of article 105 and articles 277, 295 and 317 of the Criminal Code of the Russian Federation. Here we are talking about the general norm (responsibility for the murder) and special norms (the killing of specific representatives of the authorities and the rule of law).
The criminal law in general rules sets forth the corpus delicti in general, and in the norm of a special nature - the special, that is, the specific corpus delicti. The composition of a special nature has similar characteristics with the general, but stands out in an independent article due to the characteristics of one of the elements of the crime.
General and special competition of norms in criminal law are divided into the basic and qualified composition, as well as the basic and privileged composition. In both cases, conflicts are resolved in favor of the latter.
Collisions general or special and exceptional
The peculiarities of the exceptional norms are that they set the procedure for action and the resolution of various issues of the criminal law sphere in a different way than is accepted in general legal regulations.
Criminal legislation classifies the provisions of Section V of the Criminal Code of the Russian Federation as an exceptional rule, which governs the specifics of prosecuting the criminal nature of persons under 18 years of age.
Exceptional norms set limits on criminal prosecution of minors, which are very different from general norms. Such differences include the amount and type of punishment, the statute of limitations, the term for the removal and repayment of a criminal record, release from punishment, and so on.
Conflicts of several special norms
In the presence of a conflict of several norms of a special nature, the norm should be applied, which is more specific (special). Competition in this case is explained by the fact that the legislator can separate out special types of norms both on the basis of the hanged principle and on the principle of reduced danger to the behavior of a person for society.
Conflicts of special norms are divided into three subspecies:
- Competition of two teams of the qualified type. In this case, a more qualified composition is taken as the basis. For example, theft committed with aggravating circumstances, which are provided for immediately by several paragraphs and parts of Article 158 of the Criminal Code of the Russian Federation, is qualified according to the composition that is more qualified in relation to this type of crime. This means that the content of the paragraph of the article closest to the merits of the act is the main one. In the event that a more qualified composition is used, the indictment clearly spells out all the attributes of a qualified type that constitute this crime (both in a qualified and in a specially qualified composition).
- Collision of two or more compositions of a privileged type. In this case, the basis is taken more privileged composition, which contains sanctions of a milder nature. For example, if a murder of a privileged type is considered as a crime committed in an affective state or as a murder committed because the limits of the necessary defense (or measures necessary to detain the criminal) are exceeded. In this case, the necessary defense is considered the more privileged corpus delicti .
- Collision of compositions of privileged and qualified types. With this type of competition, the choice is decided in favor of the privileged. Most often, this type of collision appears during a killing qualification. For example, a murder committed in an affective state (Article 107 of the Criminal Code of the Russian Federation). Even if it is committed in a manner dangerous to society, with a special manifestation of cruelty or against two or more persons (part 2 of article 105), the crime will be qualified under article 107.
Competition of the whole and part
Competition of this type arises in those situations where the qualification of the crime committed can simultaneously be attributed to several norms of the law. Moreover, one legislative norm covers all the elements of a perfect act, and the other only one part or some parts.
Such competition appears in the simultaneous collision of a simple single and complex single composite criminal offense. In this case, one of the criminal offenses, according to the law, is a mandatory or qualified attribute of another (composite) crime.
For example, competition of the whole and part is encountered when considering a crime established by Article 162 of the Criminal Code of the Russian Federation, that is, robbery. Robbery is an attack aimed at stealing the property of another person, the commission of which uses violence that is dangerous to health and life. Another option is the threat of using this type of violence.
Violence hazardous to health and life means causing harm to a victim to a small degree, causing a health disorder for a short time or a slight loss of ability to work, causing harm of medium or high severity, as well as death. But such an act is an independent composition and is formulated in other articles of the Criminal Code of the Russian Federation (112, 105, 115, 111).
In the event that a robbery entails harm to the health of the victim, there is a conflict of norms on robbery and crimes aimed at harming the person. Law enforcers have established that in this case the article on robbery is applied, as it covers the crime in full.
The general rule that in the competition of the whole and part the whole is selected has one exception. If the crime, which is part, is a more serious criminal offense than its whole, then the act is qualified as a combination of criminal offenses.
Competition of criminal norms in practice is common. Therefore, law enforcers must correctly disassemble the committed acts, isolate competing norms and correctly apply the necessary in each case.