A Crime Organizer in the General Part of the Criminal Code of the Russian Federation and Special Rules on Complicity of the Special Part

2021 ◽  
Vol 16 (12) ◽  
pp. 118-133
Author(s):  
D. M. Molchanov
Keyword(s):  
Russian Federation ◽  
Criminal Group ◽  
Criminal Code ◽  
Judicial Practice ◽  
Original Plan ◽  
Special Part ◽  
The Russian Federation ◽  
Special Rules ◽  
The Moment

A paper provides a comprehensive study of the role of the organizer in crimes without compulsory complicity and in crimes prohibited by special provisions on complicity of the Special Part of the Criminal Code of the Russian Federation (Under the special rules on complicity in this work we understand two types of norms of the Criminal Code of the Russian Federation: 1) rules establishing responsibility for combining several persons into a criminal group — Art. 209, 210 and others; 2) establishing responsibility for instigators, organizers, accomplices and other accomplices directly in the Special Part of the Criminal Code of the Russian Federation — Art. 205.1, etc.). The paper considers the issues of distinguishing the role of the organizer from the role of the instigator to the commission of a crime and an accomplice in the commission of a crime. In judicial practice, errors are often encountered both in the form of excessive (when the instigator is recognized as the organizer) and in the form of insufficient qualifications (when the organizer is recognized only as an instigator or accomplice). Such a variant of over-qualification is also possible, when the organizer is recognized as both an accomplice and an instigator to committing a crime, although the role of the organizer should absorb these functions. The paper considers the issues of qualification of the actions of the organizer and other accomplices of the crime, when, in the process of directing the commission of the crime, the organizer changes the direction of the actions of the accomplices in comparison with the original plan of action. The Plenum of the Supreme Court of the Russian Federation in some decisions recommends not to take into account the role of the organizer when committing a crime as part of an organized group (to recognize him as a co-executor of the crime). In the educational literature, this is considered as a universal rule for qualifying crimes committed by an organized group. The Criminal Code of the Russian Federation does not provide grounds for such a qualification. In judicial practice, there is no uniformity on this issue. The role of the organizer in crimes without obligatory complicity distinguishes from the role of the organizer in organized groups and criminal communities (special rules on complicity) in that in the first situation the organizer is subject to responsibility only if preparations for a specific crime are started, and in the second situation, regardless of the crime preparation commencement, but from the moment the corresponding organized group or criminal community was created.

FORMAL AND EVALUATIVE CHARACTERISTICS OF CRIMES COMMITTED IN THE SPHERE OF ECONOMIC ACTIVITY

2021 ◽  
pp. 86-97
Author(s):  
Yuri V. Truntsevsky ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Economic Activity ◽  
Criminal Liability ◽  
Criminal Code ◽  
Judicial Practice ◽  
Special Part ◽  
The Russian Federation ◽  
Author Note

In the article, the author consider the theoretical positions on the rules for the qualification of crimes in the field of economic activity. The author consider the judicial practice in criminal cases and formulates conclusions about the characteristics of the elements (signs) of corpus delicti (see also – delicti) set out in the dispositions of articles of Chapter 22 of the Criminal code of the Russian Federation. One of the objectives of the article is to consider formal and informal elements as content (context) delicti. At the same time, the author note that the formality or informality of signs (context) delicti has no legal significance. This conclusion follows from the provision that all the signs described in the norm of the Special part of the Criminal code of the Russian Federa-tion are legally mandatory. It is important to differentiate between elements of crimes in order to qualify crimes, especially those committed in the sphere of economic activity. The author notes that the dispositions of articles of the Special part of the Criminal code of the Russian Federation can combine elements of blankness, descriptive and evaluative. The author notes the accessory nature of criminal law from positive (regulatory) legal regulations, and the absence of concentration of legal sources. The author emphasized that the norms of the Special part of Criminal law contain two parts. The first part contains a description of the object of the crime, which the offender attempt on. Such an object is represented in the form of a legal order established by the norms of regulatory legislation. The author considers the fact of attempt on this law and order as event (hypothesis) of criminal liability. Clarification of this hypothesis take place in the process of qualifying crimes (in the sphere of criminal law application). Together, these parts of the disposition of the criminal law norm form a common whole, which indicate the legislator's idea of a criminal law prohibition. The article emphasizes the intersectoral nature of the institution of formulating grounds for criminal liability for crimes in the sphere of economic activity. The author identifies the types of evaluation signs delicti of economic crimes: quantitative (size), qualitative (can not be measured by cost) and cumulative. The author comes to the conclusion that it is expedient to further study the concept, types and role of evaluative signs of crimes. The role of evaluation signs is stated in the formulation of criminal law prohibitions. The author makes the following conclusions for the readers' discussion: the formulation of signs of crimes in the sphere of economic activity is based on the blank dispositions of the corresponding articles; a separate type of such description of the disposition is administrative prejudice; this administrative prejudice relates the grounds for criminal liability of a person for the act with his previous administrative penalty; assessment signs of the crime is determined not only by the normative legal act, judicial practice, but also in the process of qualification of a crime is determined by the consciousness of a person when it examines the being of the case.

Individualization of Punishment Taking into Account the Nature and Degree of Public Danger

2016 ◽  
Vol 4 (11) ◽  
pp. 0-0
Author(s):  
Вячеслав Воронин ◽  
Vyacheslav Voronin
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Legal Practice ◽  
The Public ◽  
Judicial Practice ◽  
Common Criteria ◽  
The Supreme Court ◽  
Special Part ◽  
The Russian Federation ◽  
The Common

Part 3 of article 60 of the Criminal Code of the Russian Federation refers to the common criteria of individualization of punishment the nature and degree of public danger of committed crime in each criminal case. The purpose of this article is to analyze the legal practice of this provision, as well as the construction of clarification on the issue of taking into consideration the public danger, which will be useful for the judiciary. For this purpose the author supposes to solve following problems: analysis of dogmatic ideas about the nature and degree of public danger; search for factors that courts consider in determining public danger in judicial practice; analysis of the survey data of judges from different regions of the country. As a result the author concludes that the nature of public danger depends on the object of the offense and cannot influence on individualization of punishment, because it was considered by the legislator when constructing the corresponding article of the Special Part and therefore should be excluded from Part 3 of art. 60 of the Criminal Code of the Russian Federation. Degree of public danger when individualizing is determined subject to the objective and subjective elements of a crime. The author proposed to make recommendations on considering into account degree of public danger in the judgment 22.12.2015 No. 58 adopted by the Plenum of the Supreme Court of the Russian Federation “On practice of criminal sentencing by courts of the Russian Federation”.

scholarly journals КВАЛИФИКАЦИЯ НАРУШЕНИЙ ТРЕБОВАНИЙ В ОБЛАСТИ ТРАНСПОРТНОЙ БЕЗОПАСНОСТИ С УЧЁТОМ ОСОБЕННОСТЕЙ СУБЪЕКТИВНЫХ ПРИЗНАКОВ ПРЕСТУПЛЕНИЯ, ПРЕДУСМОТРЕННОГО СТАТЬЁЙ 2631 УК РФ

2020 ◽  
Vol 56 (3) ◽  
pp. 137-145
Author(s):  
Е.А. Князева
Keyword(s):  
Russian Federation ◽  
Criminal Liability ◽  
Criminal Group ◽  
Research Work ◽  
Criminal Code ◽  
Transport Infrastructure ◽  
Transport Safety ◽  
The Subject ◽  
The Russian Federation

В представленной научной работе анализируются проблемы квалификации субъективных признаков статьи 2631 УК РФ. Установлено, что данная норма была изменена в части субъекта преступления, а именно – была введена уголовная ответственность за несоблюдение требований в области транспортной безопасности пассажирами и иными лицами, т.е. лицами, обладающими признаками общего субъекта преступления. В качестве квалифицированных признаков анализируемой нормы была введена уголовная ответственность за групповое совершение данного преступления при наличии неосторожной формы вины, а именно – группа лиц по предварительному сговору и организованная преступная группа. Мы считаем, что введение соучастия в такого рода преступлениях представляет серьёзную проблему для последующего применения статьи 2631 УК РФ на практике, поскольку квалифицировать в случае нарушений указанных в рассматриваемой нами норме специальных правил по указанным в частях третьей и четвёртой признакам будет практически невозможно. Нам видится, что основная проблема ответственности соучастников за нарушение требований в области транспортной безопасности со-стоит в необходимости установления двух важных моментов: 1) ограничение круга специальных субъектов анализируемого состава преступления и его отражение на ответственность других соучастников; 2) оценка уголовно-правовой характеристики роли субъекта и других соучастников преступления. Сделан вывод о том, что соучастие по исследуемой нами норме возможно лишь в тех случаях, когда исполнителем данного преступления является специальный субъект. Остальные лица подлежат уголовной ответственности как организатор, подстрекатель или пособ-ник. Полагаем, что следует исключить данные квалифицированные признаки из исследуемого нами состава и говорить о неосторожном сопричинении, а не о со-участии. Ключевые слова: квалификация, нарушение требований, неосторожное со-причинение, неосторожная форма вины, соучастие, субъективная сторона преступления, субъект преступления, транспортная безопасность, транспортная инфраструктура. The present research work analyzes the problems of qualifying the subjective characteristics of Article 2631 of the Criminal Code of the Russian Federation. It was established that this provision was changed in terms of the subject of the crime, namely, criminal liability was introduced for non-compliance with the requirements in the field of transport safety by passengers and other persons, i.e. persons possessing the characteristics of a common subject of a crime. As qualified features of the analyzed norm, criminal liability was introduced for the group commission of this crime in the presence of a careless form of guilt, namely, a group of persons by prior conspiracy and an organized criminal group. We believe that introduction of complicity in this type of crime is a serious problem for the subsequent application of Article 2631 of the Criminal Code of the Russian Federation in practice, since it will be practically impossible to qualify in case of violations of the rules specified in the norm under consideration by the signs indicated in parts three and four. We see that the main problem of responsibility of accomplices for violation of requirements in the field of transport security is the need to establish two important points: 1) limiting the range of special subjects of the analyzed corpus delicti and its reflection on the responsibility of other accomplices; 2) assessment of the criminal law characteristics of the role of the subject and other accomplices in the crime. It is concluded that complicity according to the norm we are investigating is possible only in cases where the perpetrator of this crime is a special subject. The rest of the persons are subject to criminal liability as organizer, instigator or accomplice. We believe that it is necessary to exclude these qualified signs from the composition we are studying and talk about careless complicity, and not about complicity. Keywords: qualification, violation of requirements, careless submission, careless form of guilt, complicity, the subjective side of the crime, the subject of the crime, transport security, transport infrastructure.

scholarly journals Aggravating circumstances

2019 ◽  
Vol 13 (2) ◽  
pp. 153-161
Author(s):  
A. P. Kuznetsov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Soviet Period ◽  
Practical Implementation ◽  
Special Part ◽  
The Russian Federation ◽  
The Law ◽  
Preventive Role

In the article on the basis of the latest amendments made to the Criminal Code of the Russian Federation circumstances aggravating the punishment are investigated, attention is drawn to some controversial legal and technical decisions in their formulation. The criminal law on the strength of influence of certain circumstances on the chosen punishment is clearly not enough, which does not contribute to enhancing the preventive role of the law, the elimination of subjectivism and discord in practice. Most scientists and practitioners support the idea of specifying, emphasizing that it will be easier to apply the law, circumstances of the case will be visibly linked to the chosen measure of criminal law impact, the importance of references in sentences to data on the case will increase, the preventive role of criminal law will increase, the prerequisites for a uniform understanding will be strengthened and application of the Criminal Code. It was not by chance that in the Soviet period of development of the science of criminal law, a tendency emerged to single out: a) main and b) other mitigating and aggravating circumstances. Consequently it is necessary to take into account the whole range of issues relating to the practical implementation of the idea of legislative specification of the strength of influence of individual circumstances: the circle of circumstances, which it may concern; the extent to which such circumstances influence the punishment (including the expediency of specifying in the law how much the punishment increases or decreases, or what is the upper or lower new limit within which the court selects the punishment taking into account the “main” circumstance). According to Part 2 of Art. 63 of the Criminal Code of the Russian Federation if the aggravating circumstances are provided for by the relevant article of the Special Part as a sign of a crime, it in itself cannot be re-taken into account when imposing a punishment. In the criminal law doctrine an exhaustive (closed) list of aggravating circumstances has not been approved by scientists, who believe that this method does not take into account changes in the sphere of public life to a certain extent.

scholarly journals ELECTRONIC DATABASES AS A SOURCE OF OBTAINING DATA FOR THE CIRCUMSTANCES TO BE PROVEN IN A CRIMINAL CASE

2021 ◽  
pp. 39-42
Author(s):  
A.Yu. Safronov
Keyword(s):  
Russian Federation ◽  
Federal Court ◽  
Criminal Code ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Record Keeping ◽  
Judicial Practice ◽  
Special Part ◽  
Other Information ◽  
The Russian Federation

The article provides an analysis of the sources of obtaining evidentiary and other information necessaryfor the investigation body, the prosecutor (state prosecutor) and the court to implement the provisions on theconfiscation of property under Art. 104.1 of the Criminal Code of the Russian Federation. With examples fromthe judicial practice of the federal court and the positions of the Supreme Court of the Russian Federation,set out in the Resolution of the Plenum, the issue of obtaining information from electronic databases aboutthe property status of a participant in criminal proceedings is considered. The possibilities of GAS “Justice” ofPI “Judicial record-keeping” on the issues under consideration are revealed. The conclusion is substantiatedthat the conclusion that electronic databases can and should be used as a source of obtaining data for thecircumstances to be proved in a criminal case. Taking into account the provisions of Articles 73 and 74 of theCriminal Procedure Code of the Russian Federation, the place and type of information received, using theseelectronic databases, in the evidence system in a criminal case, is determined. The conclusion is substantiatedthat the list of compositions (articles) of the Criminal Code of the Russian Federation, according to which itis possible to apply confiscation by a conviction of a court, is practically unlimited, and, to be more precise,is limited only to the list of articles of the Special Part of the said code.

Features of the criminal evaluation of objective signs of timber smuggling (Art. 226.1 of the Criminal Code of the Russian Federation)

2020 ◽  
Vol 2020 (4) ◽  
pp. 62-72
Author(s):  
Arbi Akiev ◽  
Daria Fisenko
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Modus Operandi ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Legislative Structure ◽  
The Moment ◽  
Objective Side ◽  
Enforcement Activity

In the article the authors examine certain problems of qualification of smuggling of timber being one of the types of strategically important goods and resources for the Russian Federation. These problems are stipulated by the specific of the legislative structure, as well as by the difficulties of interpreting this corpus delicti. Within the frame of the research it was established that that most difficulties in law enforcement activity arise in the course of criminal-legal assessment of the objective signs of timber smuggling and, mostly, of the subject of the corpus delicti under consideration and modus operandi of the crime due to the specifics of timber being the object of smuggling. In order to solve problems stated in the article, the authors analyze such ob-jective signs of corpus delicti provided for by Art. 2261 of the Criminal Code of the Russian Federation, as a subject and an objective side on the basis of materials of of-ficial statistics, judicial practice and criminal law doctrine. As a result of the conducted analysis the authors’ recommendations on the qualification of timber smuggling are formulated. Thus, the authors clearly identified the established in the current customs legislation a list of types of timber related to the subject of the crime provided for by Art. 2261 of the Criminal Code of the Russian Federation; the most common modus operandi of timber smuggling in judicial practice are explained; the moment of completion of the criminal encroachment under analysis is clarified, and the amount of damage necessary to qualify the timber smuggling under Art. 2261 of the Criminal Code of the Russian Federation are defined.

scholarly journals Coercion to Sexual Acts: Issues of Interpretation and Application

Lex Russica ◽  
2021 ◽  
pp. 54-66
Author(s):  
K. V. Dyadyun
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Code ◽  
Sexual Crimes ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Cis Countries ◽  
The Moment ◽  
Definition Of

The paper analyzes the features of the regulation of objective and subjective characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation, their influence on application of the aforementioned norm. The paper examines the category of "compulsion", the concept of "other sexual actions", their correlation with the definition of "sexual harassment". The paper resorts to legal and etymological approaches to the understanding and content of these terms, gives recommendations for improving the legislative and law enforcement practice in this area. The author analyzes the approach to the interpretation of the content aspects of compulsion—encouragement/compulsion. The issue of the moment of the end of the criminal act under consideration (process/result) is examined. The author determines and substantiates deficiencies in the regulation of methods of coercion to actions of a sexual nature. The concept of "dependence" in the considered area, its relationship with the state of helplessness is investigated. The essential and substantive characteristics of the threat as a method of coercion to sexual actions (criteria and their interpretation) are analyzed. Also, the author examines the issue of qualifying characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation and problems of interpretation of the characteristics of the subject matter, motives and purpose of this act. The complexity of the delimitation of the aforementioned criminal act from an insignificant offense, a moral offense, an administrative offense, and related crimes are indicated. The author also analyzes the issue of qualification of the act under Art. 133 of the Criminal Code of the Russian Federation and its impact on its relationship with violent sexual crimes. The paper presents an analysis of the legislation of the CIS countries on the issue under consideration and provides for historical summary about the evolution of the domestic legislative approach in the aforementioned area. The determinants of law enforcement problems are identified and indicated. Conclusions and recommendations are based on the study of judicial practice, researchers’ opinions, the RF Supreme Court standing, the rules applied to qualify criminal acts.

scholarly journals The prohibition of driving a vehicle for committing a crime as a means of ensuring transport security

2021 ◽  
Vol 26 (4) ◽  
pp. 216-221
Author(s):  
Lyubov’ Yu. Larina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Code ◽  
Criminal Cases ◽  
Judicial Practice ◽  
Special Part ◽  
The Russian Federation ◽  
The Right ◽  
Vehicle Management

The article deals with the penalty of deprivation of the right to engage in vehicle management activities as a means of ensuring transport security. This penalty is often imposed for crimes committed while driving vehicles. At the same time, judicial practice in relation to various articles of the special part of the criminal code of the Russian Federation develops in different ways. The author analyses sentences and other judicial acts in criminal cases on crimes committed while driving vehicles. Based on the generalisation of theoretical material and judicial practice on the problem under consideration, the author formulated proposals for changing the current legislation and recommendations for law enforcement. The article substantiates the need for mandatory discussion by the court of the possibility of imposing a penalty in the form of deprivation of the right to engage in activities for driving vehicles in all cases of committing a crime while driving.

scholarly journals Problems of Establishing Malfeasance in Bankruptcy

2021 ◽  
Vol 16 (1) ◽  
pp. 120-127
Author(s):  
A. K. Subachev
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Time Limits ◽  
Judicial Practice ◽  
The Russian Federation ◽  
The Moment ◽  
Objective Side ◽  
Legal Grounds

The elements of a crime provided for in Part 1, 2, Art. 195 of the Criminal Code of the Russian Federation include a crime situation as a feature of the objective side, i.e. the presence of signs of bankruptcy, the exact establishment of the moment of occurrence of which allows us to clearly determine the time limits of the criminal law prohibition in relation to acts under Part 1, 2 of Art. 195 of the Criminal Code of the Russian Federation. Meanwhile, the understanding of the situation of illegal actions in bankruptcy in special literature and judicial practice is based on a literal, and not substantive, understanding of the provisions of the legislation on insolvency, to which the dispositions of the above offenses are referred. In this regard, when classifying the offense under Part 1, 2, Art. 195 of the Criminal Code of the Russian Federation, criminologists propose to be guided in fact by procedural presumptions of insolvency and the grounds for initiating a case on the debtor’s insolvency. Current judicial practice follows the same path. The stated understanding is not only methodologically incorrect, but also significantly reduces the criminal law potential of the mentioned norms of criminal law by narrowing the scope of their action. In turn, the paper pays attention to the substantive and legal grounds for stating that the debtor has signs of bankruptcy, which should be taken into account when classifying the deed as illegal actions in bankruptcy. The authors formulates his own position on the question of determining the moment of the emergence of the situation of the investigated crimes.

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