The difference between the aggregate and complex single crimes. Primary and additional punishment
set of crimes. Her types. Difference from single complex compositions.
The totality of crimessequentiallyany crimes, if for none andfrom which the person has not been convicted or released from the criminal justice system.Two types of aggregates: real and ideal.
Real Population - the commission of two or more crimes as a result of an appropriate number of independent acts separated by time intervals. The real totality is formed not only by completed crimes, but also by preparation for them or attempts on them.
The commission of a socially dangerous act as a means of committing another crime does not constitute a set of crimes. For example, when committing a theft with penetration into a dwelling, the destruction by a thief during the penetration of doors, locks, glass in windows is not subject to independent qualification.
If a socially dangerous act acts as a qualifying feature, it also does not form a set of crimes. For example, the theft of narcotic drugs with the use of violence dangerous to life and health is qualified only under paragraph "c" of Part 3 of Art. 229 of the Criminal Code of the Russian Federation, robbery in this case acts as a qualifying sign.
Ideal collection - one action (inaction) contains signs of crimes provided for by two or more articles of the Criminal Code of the Russian Federation
For example, depraved acts against a person under the age of 16, committed with the use of official authority, should be qualified according to the totality of Art. Art. 135 and 285 of the Criminal Code of the Russian Federation.
There is no ideal population in the following cases:
If one of the acts acts as a stage of implementation or an integral part of another, more dangerous act: for example, causing minor harm to health during robbery is absorbed by the composition of robbery, since it acts as one of the links in the process of forcible theft of property.
If the act contains signs of different qualified compositions of the same crime.
If the act contains signs of a qualified and especially qualified corpus delicti of the same crime. In this case, the act is qualified according to the most stringent criminal law norm, but other qualifying signs are also indicated in the final procedural document. It should be borne in mind that in some cases an act can be qualified under several parts of the same article of the criminal law - if each of the parts provides for a separate corpus delicti, and not a qualifying sign of the main corpus delicti.
Competition of norms - if there are general and special norms, liability arises according to a special norm (Article 105 and other murders).
In contrast to the aggregate, in competition, one single crime is committed, which must be qualified under one article of the code.
Single crimes with complex compositions include:
Compound crimes (robbery)
crimes with two or more actions or consequences; (alternatives to actions or alternatives to consequences)
Continuing and continuing crimes;
Crimes resulting from the repetition of similar actions;
· crimes covered by more serious consequences, ie qualified offences.
The committed in the aggregate always involves the commission by a person of two different independent crimes that are subject to separate qualifications.
V.N. Kudryavtsev proposed the following rules: there will be no ideal set of crimes:
1) if several identical harmful consequences relate to the same object (for example, several minor bodily injuries were caused to a person by one action);
2) the same consequences apply to several similar objects (two people were killed by negligence with one shot. In fact, there are not two similar objects here, but one object and two victims.);
3) objects are in relation to each other in a relationship of subordination or one is part of the other (during the murder, the killer usually causes harm to health, from which the victim dies - the murder covers the infliction of harm to health in the process of killing, however, in the case of a murder associated with rape there will be an aggregate, so as sexual inviolability as an object of rape is not included in the object of murder and is not in relation to subordination, "is not a condition of human life");
4) the consequences that have occurred are included in the same complex provided for by this criminal law norm (for example, bodily injuries, up to less serious ones, are covered by the composition of hooliganism).
1.3 Distinguishing aggregation from complex single crimes
The totality of crimes, unlike single ones, consists of two or more crimes. Single crimes can have a complex content, reminiscent of a multiple crime due to the several acts that form them. Such single crimes include continuing, continuing and compound.
A continuing crime is such a single crime, the act of which is carried out in parts, that is, a crime consisting of a number of legally identical criminal actions directed towards a common goal and constituting in their totality a single crime. From the above definition, the following signs of a continued crime follow:
a) the presence of a number of identical actions;
b) all actions are directed to the same object;
c) they are united by a common goal and therefore are part of a single whole
It is also characteristic of continued crimes that they are only intentional and can only be committed by action. But a serious question arises how to distinguish a crime committed by several similar independent actions from the aggregate, if the objective side can be absolutely identical. The Supreme Court of the Russian Federation in its decisions indicates that the main role will be played by the subjective side. For example, continued embezzlement consists of a series of identical criminal acts committed by seizing someone else's property from the same source, united by a single intent and constituting in their totality a single crime. Here are a number of specific circumstances in the presence of which the committed actions will be qualified as one crime. The listed signs of continued theft must all be present. The wording itself speaks for itself. In the absence of at least one of them, the deed should be qualified as a set of crimes. To assert that the main criterion for differentiating a continuing crime and a set of crimes is the subjective side allows the following: in the presence of all the mandatory features necessary for a continuing crime, but in the absence of a single intent, the actions of the perpetrator are qualified according to the totality of crimes, and if it is established that there is a single intent, then should be qualified as a single crime.
This conclusion is confirmed by examples from judicial practice. For example, the Presidium of the Armed Forces of the Russian Federation pointed out, in one of the cases, that “The same actions of the perpetrator are unreasonably qualified under part 3 of article 30, paragraph “d” of part 2 of article 105 of the Criminal Code of the Russian Federation and part 1 of article 105 Criminal Code of the Russian Federation (murder and attempted murder).
It was established that after the victim K. informed K. of her pregnancy and demanded money, otherwise threatening to declare her raped by K., the latter hit the victim with a bottle on the head and several times with his foot in the face. When the victim lost consciousness, K. threw a noose around the victim's neck and tied the oven door to the handle. As a result of mechanical asphyxia, the victim died at the scene.
A forensic medical examination established that the victim was not in a state of pregnancy.
The court of first instance qualified these actions of K. under Part 3 of Art. 30, paragraph "g" part 2 of Art. 105 of the Criminal Code of the Russian Federation and part 1 of Art. 105 of the Criminal Code of the Russian Federation, that is, as an attempt to cause the death of the victim, who is known to him to be in a state of pregnancy, and intentionally causing the death of the victim.
The Court of Cassation upheld the verdict.
Deputy Attorney General The Russian Federation, in a supervisory submission, asked to change the court decisions, to exclude K. from the conviction, part 3 of Art. 30, paragraph "g" part 2 of Art. 105 of the Criminal Code of the Russian Federation.
Presidium Supreme Court The Russian Federation satisfied the prosecutor's supervisory submission on the following grounds.
According to part 2 of Art. 17 of the Criminal Code of the Russian Federation, a single action (inaction) containing signs of crimes provided for by two or more articles of the Criminal Code can be recognized as a set of crimes.
It can be seen from the verdict that the court qualified the same actions of K. both as murder and attempted murder, that is, under different parts of one article of the Criminal Code of the Russian Federation.
The Presidium of the Supreme Court of the Russian Federation excluded from judgments K.'s conviction under Part 3 of Art. 30, paragraph "g" part 2 of Art. 105 of the Criminal Code of the Russian Federation, since K.'s intent to deprive the victim of life was fully realized and as a result of his actions the death of the victim occurred.
Thus, the qualification of K.'s actions as attempted murder is superfluous." It is obvious that in the above example, the intent of the perpetrator covered one ongoing crime.
Continuing crimes are those in which the act proceeds continuously for a certain period of time. In them, the act is one, but it is extended in time and has the character of a process. The form of continuing crime can be either action or inaction. A crime in the form of an action may consist in the manufacture of counterfeit money, weapons, drugs. By inaction, continuing crimes are committed when a legal obligation is not fulfilled, for example, when evading the payment of alimony (Article 157 of the Criminal Code), when the obligation to raise a minor is not fulfilled (Article 156 of the Criminal Code), when storing prohibited items (Articles 222, 224 of the Criminal Code) . They can be both intentional (Article 157 of the Criminal Code) and careless (Article 284 of the Criminal Code).
For example, the Topkinsky City Court of the Kemerovo Region found: Sagiev R.Kh. is accused of the fact that at the beginning of September 2009 it was not possible to establish the exact date, he, being on the territory behind a residential area located at the address: Kemerovo region, Topkinsky district, village of Pinigino, illegally, having the intent to illegally acquire, store and carrying ammunition, acting in violation of the requirements of Article 22 of the Federal Law of the Russian Federation "On Weapons" of December 13, 1996 and Decree of the Government of the Russian Federation No. 814 of July 231, 1998 "On measures to regulate the circulation of civilian and service weapons and cartridges for them on the territory Russian Federation and Articles 19.54 of the Rules for the Circulation of Service and Civilian Weapons and Cartridges for It on the Territory of the Russian Federation, which provide for a ban individuals for the storage and use of ammunition for firearms, which they do not own, as well as the possibility of storing ammunition only with a permit for the storage of weapons issued by the internal affairs body, acting intentionally, illegally, without an appropriate permit for the right to acquire, store and carry ammunition, by assigning them to himself, that is, without having the appropriate permission, he acquired, by finding, three cartridges of 5.6 mm caliber. After that, having the intent to illegally store and carry these ammunition, acting deliberately, illegally, without the appropriate permission, he brought them to his home at the address: Kemerovo region, Topkinsky district, Pinigino village, Tsentralnaya St., 36, where illegally, not having the appropriate permission, began to store them until they were discovered by the police, that is, until 11.02.2010.
The difference between the totality of crimes and complex single (continuing, continuing) crimes
Continued crimes are understood as "crimes consisting of a number of identical criminal actions directed towards a common goal and constituting in their totality a single crime."
A continuing crime is understood as “an action or inaction associated with subsequent prolonged failure to fulfill the obligations imposed on the perpetrator by law under the threat of criminal prosecution”, “which are committed for a more or less long time”, “characterized by the continuous implementation of the elements of a certain criminal act”.
Thus, if continuing crimes are committed by several identical or homogeneous actions (for example, separate episodes when receiving a bribe in parts, separate episodes of prolonged theft, systematic beatings during torture), then continuing crimes are committed by a single action or inaction (for example, escape from a place of deprivation freedom, possession of weapons or drugs, evasion of military and alternative service, hostage-taking), and then last until the crime is stopped or the offender takes an active action that stops the crime (for example, the offender throws away the drugs he has), or the course of the offense was not interrupted by other circumstances.
Continuing crimes are almost impossible to confuse with cumulative crimes. Continuing crimes can in some cases be confused with cumulative crimes. A single continued crime differs from a plurality of crimes by a single intent of criminal activity. In the absence of unity of intent, the qualification must be carried out episode by episode, despite the presence of other signs of a continued act, as can be seen from the following example.
By the verdict of the Belovsky District Court dated September 7, 2004, Pugacheva was convicted on the fact of fraud on December 29, 2003 under Part 2 of Art. 159 of the Criminal Code of the Russian Federation, on the fact of fraud on February 26, 2004 under Part 2 of Art. 159 of the Criminal Code of the Russian Federation.
IN cassation complaint the lawyer asked to reconsider the verdict of the court, because, according to the lawyer, the court erroneously established a set of crimes in Pugacheva's actions, since a continuing crime is seen in Pugacheva's actions, and her actions should be qualified under one part 2 of Art. 159 of the Criminal Code of the Russian Federation. The Judicial Collegium in its cassation ruling of 02.12.04 pointed out the inconsistency of this argument. By a court verdict, Pugacheva was found guilty of having deliberately, for the purpose of embezzlement, misled Larionov about her ability to obtain information and give advice on the case of his son, who was brought to criminal responsibility, as well as about the possibility of resolving the issue through a judge about on December 29, 2003, on December 29, 2003, on December 29, 2003, she stole Larionov's money by fraud in the total amount of 30,142 rubles, causing significant damage. In addition, on February 26, 2004, Pugacheva again, for the purpose of embezzlement, deceived Larionov, saying that the judge needed to transfer another 30,000 rubles to decide on the appointment of his son with a punishment not related to deprivation of liberty, thus stole 30,000 rubles, causing significant damage to Larionov. The Board pointed out that the arguments about the existence of a single ongoing crime are refuted by the case materials, including the testimony given by Pugacheva at the preliminary investigation, from which it follows that she did not have a single intent to steal money in the amount of 60,000 rubles in several stages. Having seized 30,000 rubles on 12/29/03, Pugacheva again demanded another 30,000 rubles after she realized that the victims were ready to pay more for helping their son.
IN judicial practice some features have the qualification of crimes related to drug trafficking. When considering cases of illicit trafficking in narcotic drugs, judges are guided by the explanations given in paragraph six, according to which, in the case when a person, having the intent to sell narcotic drugs, psychotropic substances or their analogues, plants containing narcotic drugs or psychotropic substances, or of their parts containing narcotic drugs or psychotropic substances, on a large or especially large scale, has committed such actions in several steps, having sold only a part of the indicated means or substances that he has, which does not form a large or especially large large size, everything he has done is subject to qualification under part 3 of article 30 of the Criminal Code of the Russian Federation and the corresponding part of article 228.1 of the Criminal Code of the Russian Federation.
Based on the above position of the highest court, in order to qualify the committed as a continuing crime, it is necessary to establish that the guilty person in parts realizes his single intent to sell the same substance previously acquired for the specified purpose. The specific circumstances of each episode of sale, namely, whether it was carried out by the same person, for a short period of time or not, are of no significant importance. In the event that a person each time acquires a new narcotic drug and sells it, including to the same buyer after a short period of time, such a crime cannot be recognized as continuing. For example, in the criminal case against M., the following was established.
In the period up to February 11, 2009, M., having the intent to illegally sell narcotic drugs to an indefinite circle of persons in order to obtain material reward, under circumstances not established by the investigation, illegally acquired from an unidentified person and subsequently also illegally stored a substance containing narcotic means - methamphetamine weighing 0.655 grams and 0.659 grams, and with a total weight of 1.314 grams, which is a large size, as well as tablets weighing 0.274 grams, 0.275 grams, 0.270 grams and 0.285 grams, containing the narcotic drug amphetamine weighing 0.003 grams each tablet, and the total weighing 0.012 grams.
Realizing his single criminal intent aimed at the illegal sale of all of the listed narcotic drugs, M. on February 11 and 12, 2009, for a monetary reward, tried to sell them to D., who acted within the framework of the operational-search operation conducted by the employees of the Department of the Federal Drug Control Service of Russia in the Novgorod Region test purchase activities. So, on February 11, 2009, at about 12:50 pm, M., being near front door to the building of the technical school, illegally, in violation of the Federal Law of the Russian Federation of January 8, 1998 No. 3-FZ “On Narcotic Drugs and Psychotropic Substances”, handed over to D. under the condition of subsequent transfer in return Money in the amount of 1000 rubles, a substance containing the narcotic drug methamphetamine weighing 0.655 grams, which is a large amount. Subsequently, D. voluntarily handed over the indicated drug to the employees of the Department of the Federal Drug Control Service of Russia in the Novgorod Region, as a result of which the drug was withdrawn from illegal circulation and M. could not complete his criminal intent aimed at illegal sale of drugs, due to circumstances beyond his control .
On February 12, 2009, at about 1 pm, M., being near the entrance door to the building of the technical school, illegally, in violation of the Federal Law of the Russian Federation of January 8, 1998 No. 3-FZ “On Narcotic Drugs and Psychotropic Substances”, sold D. for 1,500 rubles a substance containing the narcotic drug methamphetamine weighing 0.659 grams, which is a large size, and tablets weighing 0.274 grams, 0.275 grams, 0.270 grams and 0.285 grams, containing the narcotic drug amphetamine weighing 0.003 grams each tablet, and with a total weight of 0.012 grams. Subsequently, D. also voluntarily handed over these narcotic drugs to the employees of the Department of the Federal Drug Control Service of Russia in the Novgorod Region, as a result of which the narcotic drugs were withdrawn from illegal circulation and M. could not complete his criminal intent, aimed at the illegal sale of narcotic drugs, for reasons beyond his control. circumstances.
As can be seen from the above example, M. initially purchased a certain amount of the drug for the purpose of selling and subsequently realized his criminal intent in parts, which gave grounds for qualifying his actions as a single ongoing crime.
In other cases, judges qualify the actions of traffickers within the framework of repeated test purchases as a set of crimes, given that each time a new drug was sold, and therefore there are no necessary signs of a continuing crime - unity of intent and unity of source.
For example, in a criminal case against B., convicted of two crimes under Part 3 of Art. 30 and part 1 of Art. 228.1 of the Criminal Code of the Russian Federation, the following was established.
B. in the period up to September 28, 2009, by telephone, agreed with an unidentified person to purchase a narcotic drug in the amount of two doses for one-time consumption. On the same day, B. transferred a sum of 1,800 rubles through a payment terminal. After that, I received information about the whereabouts of the narcotic drug by phone from a person unidentified by the investigation. For the purpose of subsequent illegal sale, B. acquired, by finding in a specified place in a paper bundle, a narcotic drug - a mixture containing diacetylmorphine (heroin), 6-moacetylmorphine and acetylcodeine, a psychotropic substance - dextromethorphan, a potent substance - phenobarbital, which also included caffeine and lidocaine, which are not narcotic drugs, psychotropic, potent or poisonous substances. For the purpose of illegal sale, B. kept this narcotic drug with him and at the place of residence.
On September 28, 2009, between 10 am and 11 am, B., while at his place of residence, illegally sold A., acting as part of a test purchase of a narcotic drug, as a buyer under the control of law enforcement officers, by selling for 1,500 rubles, narcotic drug - a mixture containing diacetylmorphine (heroin), 6-monoacetylmorphine and acetylcodeine, a psychotropic substance - dextromethorphan, a potent substance - phenobarbital, weighing 0.2490 g, which also included caffeine and lidocaine, which are not narcotic drugs, psychotropic, potent or toxic substances in a paper roll.
He, in the period up to October 01, 2009, through the same subscriber phone number, in the same way, by transferring 1800 rubles through the terminal and obtaining information about the location of the drug from an unidentified person, for the purpose of further illegal sale, again acquired in a paper bundle, a narcotic drug - a mixture containing diacetylmorphine (heroin), 6-moacetylmorphine and acetylcodeine, codeine, morphine, a psychotropic substance - dextromethorphan, a potent substance - phenobarbital, as well as caffeine and lidocaine, which are not narcotic drugs, psychotropic, potent or poisonous substances. He kept the specified narcotic drug for the purpose of illegal sale with him and at his place of residence.
October 01, 2009, in the period from 09:30 to 10:40, B., in violation of the Federal Law of the Russian Federation No. 3-FZ of 01/08/1998 "On Narcotic Drugs and Psychotropic Substances", which regulates the procedure for the circulation of narcotic drugs , illegally sold by selling for 1500 rubles. A., acting as part of a test purchase, a narcotic drug - a mixture containing diacetylmorphine (heroin), 6-moacetylmorphine and acetylcodeine, codeine, morphine, a psychotropic substance - dextromethorphan, a potent substance - phenobarbital, weighing 0.2251 g, as well as caffeine and lidocaine, which are not narcotic drugs, psychotropic, potent or poisonous substances, located in a paper bundle.
This narcotic drug, immediately after its withdrawal from illegal circulation, was issued to A. by police officers.
As can be seen from this example, narcotic drugs, as in the above case, were sold to the defendants as part of repeated test purchases, to the same buyer, with an insignificant time interval. However, B. did not sell the same pre-purchased narcotic drug, but each time he acquired a new drug for sale, in connection with which his actions each time formed an independent corpus delicti.
Thus, a single ongoing crime differs from the totality of crimes by the unity of criminal intent. In the absence of a single intent, the actions of the perpetrator should be qualified according to the totality of crimes. In the presence of a combination of crimes, the imposition of punishment occurs in a different way than when imposing punishment on a person who has committed a single crime. A special procedure for imposing punishment for a combination of crimes is due to the increased public danger of the perpetrator.
Consider the procedure for sentencing in the presence of a combination of crimes.
1. The totality of crimes is the commission of two or more crimes, for none of which a person has been convicted. In the event of a cumulative crime, a person is criminally liable for each crime committed under the relevant article or part of an article of the Criminal Code (part 1 of article 17 of the Criminal Code). Signs of cumulative crimes: - two or more crimes; - one of the crimes is not a sign of another crime; - all crimes retained their legal consequences; - for none of them the person was convicted; - the crimes committed are not provided for by the articles of the Special Part of the Criminal Code of the Russian Federation as a circumstance that entails a more severe punishment. 2. Based on the law, the theory of criminal law distinguishes between two types of aggregate: - ideal; - real. 1) Within the meaning of Part 2 of Art. 17 of the Criminal Code, the ideal totality is understood as the commission by a person of one action (inaction) containing signs of two or more independent elements of crimes provided for by various articles or parts of the article of the Special Part. An ideal set of various articles of the Special Part is possible only if such articles provide for independent corpus delicti that do not compete with each other. An ideal set of different parts of one article of the Special Part is possible only if such parts provide for independent corpus delicti that do not compete with each other. 2) The real totality of crimes is understood as the commission of two or more different actions (inaction), each of which contains signs of both the same corpus delicti provided for by one article or part (parts) of the article of the Special Part, and two or more independent corpus delicti provided for by different articles or parts of the article of the Special Part. To ascertain the real totality of crimes, it does not matter whether the crimes included in the real totality are completed or not, nor whether they are committed in complicity or individually. In a real aggregate there may be heterogeneous crimes, homogeneous and identical. A mandatory feature of the totality of crimes is the absence of the fact of conviction for the crimes included in the totality. The totality of crimes serves as the basis for imposing a more severe punishment (part 2 of article 60 of the Criminal Code). The totality of crimes should be distinguished from single complex crimes, which are divided into continuing, lasting, compound crimes. A continuing crime is a single crime that consists of a series of legally identical actions directed towards the same goal and united by a single intent. A continuing crime begins with the first act of those that constitute it, and ends with the last criminal act (for example, stealing parts for assembling a computer). A continuing crime is defined by both action and inaction, associated with subsequent prolonged failure to fulfill the obligations imposed on the perpetrator by law under the threat of criminal punishment (for example, Article 222 of the Criminal Code - illegal carrying and manufacturing of weapons, Article 338 of the Criminal Code - desertion). Compound crimes are made up of two or more heterogeneous socially dangerous acts, each of which is separately provided for by the Criminal Code as an independent crime (for example, robbery - part 1 of article 162 of the Criminal Code. This composition combines two criminal acts: robbery and infliction of violence dangerous to life and health, under Part 1 of Article 111 of the Criminal Code). Compound crimes also include acts committed by one action, but entailing several different criminal consequences (for example, part 2 of article 167 of the Criminal Code). The totality of crimes, especially the ideal one, should be distinguished from a complex single crime. When combined, the crimes committed are not fully covered by the signs of one corpus delicti provided for by one article of the Criminal Code. Such a situation requires the qualification of the deed under two or more articles of the Criminal Code, the norms of which only in such a combination cover all the signs committed crimes. For example, the perpetrator unlawfully deprived the victim of freedom, while causing serious harm to his health. In the deed, there is an ideal set of crimes enshrined in paragraph "b" of Part 2 of Art. 127 and part 1 of Art. 111 of the Criminal Code, since illegal deprivation of liberty, combined with the use of violence dangerous to life or health, does not cover the composition of the intentional infliction of grievous bodily harm to a person.
21. Recidivism of crimes and its types. Criminal law meaning of recidivism.
1. Recidivism of crimes is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime (Article 18 of the Criminal Code). The following signs of recidivism follow from this definition: - commission by a person of two or more crimes at different times; - A conviction for a previous crime. Depending on the number of convictions for previously committed crimes, as well as on the severity of previously committed crimes and the severity of a newly committed crime, the legislator distinguishes three types of recidivism of crimes: - simple (part 1 of article 18 of the Criminal Code); - dangerous (part 2 of article 18 of the Criminal Code); - especially dangerous (part 3 of article 18 of the Criminal Code). 1) A simple recidivism is the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime. 2) The recidivism of crimes is recognized as dangerous on two grounds: a) when a person commits a serious crime for which he is sentenced to real imprisonment, if earlier this person was convicted two or more times for an intentional crime of medium gravity to imprisonment. Conviction to deprivation of liberty is both a conviction to deprivation of liberty for a fixed term, and life imprisonment; b) when a person commits a serious crime, if he was previously sentenced for a serious or especially serious crime to real imprisonment. In order to recognize a relapse as dangerous in this case, it does not matter the type of punishment to which a person is sentenced for a new grave crime, but for a previous crime, grave or especially grave, the person must be sentenced to real imprisonment. 3) The recidivism of crimes is recognized as particularly dangerous on two grounds: a) when a person commits a serious crime for which he is sentenced to real imprisonment, if earlier this person was convicted twice for a serious crime to real imprisonment; b) when a person commits a particularly grave crime, if he has previously been convicted twice for a grave crime or has previously been convicted for an especially grave crime. For the recognition of a particularly dangerous recidivism with such a combination of signs, it does not matter the type of punishment to which the person was convicted both earlier and for a newly committed crime. The general criteria for classifying recidivism as one of the types are: - the category of previously committed and newly committed crimes; - the number, nature and legal status at the time of the commission of a new crime of the person's convictions (part 4 of article 18, article 86 of the Criminal Code); - the fact of conviction to real deprivation of liberty, i.e. sentence to deprivation of liberty, when the sentence imposed was not decided to be considered suspended (part 1 of article 73 of the Criminal Code) or the punishment imposed was not granted a deferral of serving the sentence (part 1 of article 82 of the Criminal Code). In addition, in the theory of criminal law, recidivism is divided into the following types: - general (commitment by a person previously convicted of any new intentional crime that is not legally identical to the previous one); - special (commitment by a person previously convicted of an identical or similar crime); - penitentiary (commitment by a person serving imprisonment of a new crime). The criminal law consequences of recidivism of crimes are taken into account: - when determining the type of correctional institution (Article 58 of the Criminal Code); - as aggravating circumstances (clause “a” part 1 article 63 of the Criminal Code); - when sentencing (Article 68 of the Criminal Code), etc. When recidivism is recognized, the following are not taken into account: a) convictions for intentional crimes of minor gravity; b) a conviction for crimes committed by a person under the age of 18; c) convictions for crimes, the conviction for which was recognized as conditional or for which a deferment of the execution of the sentence was granted, if the conditional conviction or the deferment of the execution of the sentence was not canceled, and the person was not sent to serve the sentence in places of deprivation of liberty, as well as expunged or canceled convictions. The concept of relapse is established in the Russian corner. law for the individualization of responsibility and more severe punishment of persons who repeatedly commit intentional crimes. In accordance with Article 68, in case of recidivism, the term of punishment cannot be less than one third of the maximum term of the most severe type of punishment provided for this crime. So, relapse has the following legal consequences: 1) recognition as an aggravating circumstance, 2) mandatory toughening of punishment (part 2 of article 68 of the Criminal Code), 3) appointment of a certain type of correctional institution. Another classification of recidivism according to the nature of the crimes committed is general and special recidivism. General is called recidivism in the commission of heterogeneous crimes. An example would be committing libel after being convicted of vandalism. Special recidivism is formed by homogeneous and identical crimes. 2. The significance of recidivism is manifested in the fact that it: - is an aggravating circumstance (subparagraph “a”, paragraph 1, article 63 of the Criminal Code of the Russian Federation); - affects the appointment of a type of correctional institution for those sentenced to deprivation of liberty (Article 58 of the Criminal Code of the Russian Federation); - the term of punishment for any type of recidivism of crimes cannot be less than one third of the maximum term of the most severe type of punishment provided for the committed crime, but within the limits of the sanction of the corresponding article of the Special Part of the Criminal Code of the Russian Federation (para. 2 tbsp. 68 of the Criminal Code of the Russian Federation).
22. The concept and types of circumstances excluding the criminality of the act. Their social and legal nature and significance.
Article 45 of the Constitution of the Russian Federation grants everyone the right to protect their rights and freedoms by all means not prohibited by law. Among the methods of protection important place takes part in the fight against crime by suppressing criminal attacks, preventing threatening danger to personal and other legitimate interests, detaining criminals, etc. Any crime, as a rule, is associated with causing serious harm to protected communities. relationships, personal interests. The measure of inflicted or threatening harm expresses the main feature of any crime - its public danger. However, in some situations, the infliction of even significant harm in terms of its social content is beneficial for the individual and society and, therefore, is devoid of social danger and corner. wrongfulness. The law and prevailing morality allow for necessary defense, infliction of harm during the arrest of a person who has committed a crime, reasonable risk, execution of an order or order, etc. The specificity of these acts is that, despite the actual harm to the interests of people or organizations, they are not considered criminal, they do not contain public danger and criminal wrongfulness. According to their objective social content, they are aimed at strengthening positive social relations. Circumstances excluding the criminality of an act are conscious and volitional actions of a person, associated with causing any harm to other interests, but due to the lack of social responsibility. dangers and their usefulness recognized by the criminal law as lawful, excluding the criminality of the act, and, consequently, the criminal liability of a person for the harm caused. Circumstances excluding the criminality of an act are always realized in the conscious and volitional behavior of a person. His actions under such circumstances are focused on protecting the interests of the individual, society and the state. They contribute to strengthening the rule of law and are an important form active participation of citizens in the fight against crime. For this reason, proactive conscious behavior, outwardly even resembling criminal, is encouraged in every possible way, supported by morality and law. In the legal literature, the existence of an external similarity of circumstances precluding the criminality of an act with the signs of a specific crime was disputed by a number of experts. The Criminal Code of the Russian Federation practically removed this controversial issue, indicating that such acts are not a crime. The realization of rights and freedoms is often accompanied by harm to specific people, organizations, associations. Under normal conditions, with lawful behavior, the interests of these subjects are protected by law. However, if they act contrary to the interests of the individual, society, state, the law names certain grounds that allow, in the name of the common good, to stop them by methods associated with real harm, damage. The infliction of physical, material and other harm is externally realized as a crime, but it does not become one, because, due to its social content, it is useful and therefore, according to the law, is regarded as lawful behavior. The general concept of circumstances excluding the criminality of an act is important. It allows you to accurately determine the legal nature of each specific circumstance, give an adequate interpretation of it, ensure a single stable application of the criminal law, identify its gaps and contribute to their elimination. Finally, the general concept allows us to understand the most significant legal features of each specific circumstance, which facilitates the study of the material and the acquisition of skills for the subsequent application of the criminal law in practice.
23. Necessary defense, the conditions for its legitimacy and importance in the fight against crime. Exceeding the limits of necessary defense and its criminal law significance. Imaginary defense. Decree of the Plenum of the Supreme Court of the Russian Federation of September 27, 2012 No. 19 “On the application by the courts of legislation on necessary defense and infliction of harm during the arrest of a person who committed a crime”
Necessary defense is the lawful protection by a person of his rights and interests of other persons, society or the state from a socially dangerous encroachment by forced infliction of harm to the attacker, if the limits of necessary defense were not exceeded. The criminal law establishes the conditions for the legitimacy of necessary defense, which are divided into conditions related to infringement and conditions related to protection. Conditions related to the offense: 1) The offense must be socially dangerous, i.e. the degree of public danger of the act must correspond to the degree of public danger of the crime, and not of an administrative offense or a civil tort. At the same time, the public danger of the act must be so significant that, as a result of its commission, real harm legally protected interests. Minor infringement does not give the right to harm. 2) Cash determines the limits of the encroachment in time: the encroachment must begin (or the immediate threat of its real implementation is obvious), but not yet completed. There may be cases when the defense followed immediately after the completed assault, if, due to the circumstances of the case, the moment of the end of the assault was not clear to the defender. 3) Reality means that the offense is real and not a figment of the person's imagination. Conditions relating to protection: 1) Only legally protected interests are allowed to be protected. It is impossible to refer to the state of necessary defense if a personal but illegal interest is being protected. 2) The means of repelling an attack is to harm the attacker. Causing harm to others is not covered by the framework of necessary defense, but may be carried out in a state of emergency. 3) There should be no obvious inconsistency with the nature and degree of public danger of the encroachment. Under the obvious inconsistency of defensive actions with the nature and extent of the attack, it is obvious to the defender that in this particular case the attack can be repelled by other, less extreme means. 2. Exceeding the limits of necessary defense shall be recognized as intentional actions that clearly do not correspond to the nature and degree of public danger of the encroachment. When the limits of necessary defense are exceeded, the offender is inflicted unnecessarily heavy harm, which, with all obviousness, was not caused by necessity. If a person carried out a belated defense, realizing that the attack had already been completed, he should be prosecuted on a common basis. Exceeding the limits of necessary defense is possible only in the event of an offense not involving violence dangerous to the life of the defender or another person, or an immediate threat of such violence. If a person, due to the unexpectedness of the encroachment, could not objectively assess the degree and nature of the danger of the attack, exceeding the limits of necessary defense is excluded. This provision does not apply to all attacks, but only to cases of an attack, t.to. an attack is always associated with a special psycho-traumatic situation and, as a result, not always an adequate reaction of the defender. 3. Imaginary defense - defense against an imaginary and in reality non-existent encroachment, associated with causing harm to a person whose actions are mistaken for a socially dangerous encroachment. The sign of the reality of an attack makes it possible to distinguish it from an imaginary attack and, accordingly, the necessary defense from an imaginary defense. Infliction of harm during imaginary defense is qualified as follows: - if the circumstances under which the subject carried out active defensive actions gave reason to believe that a real attack was being committed, and the person was not aware and could not be aware of the erroneousness of his assumption due to the suddenness of the attack or other circumstances, his actions are to be regarded as having been done in a state of necessary defence; at the same time, if the subject has exceeded the limits of the admissibility of necessary defense, then he will be liable as for exceeding the limits of necessary defense; - if the subject was not aware of the imaginary encroachment, although, due to the totality of the circumstances characterizing a particular situation, he should and could be aware of the real absence of an encroachment, he is liable for the actual harm caused through negligence. PLENUM: Taking into account the importance of the provisions of Articles 37 and 38 of the Criminal Code of the Russian Federation to ensure guarantees of the rights of persons actively defending their rights or the rights of other persons, legally protected interests of society or the state from socially dangerous encroachments, for the prevention and suppression of crimes, as well as in connection with issues arising from the courts in the course of the application of these norms, the Plenum of the Supreme Court of the Russian Federation, in order to form a uniform judicial practice and guided by Article 126 of the Constitution of the Russian Federation and Articles 9, 14 of the Federal Constitutional Law of February 7, 2011 N 1-FKZ "On courts of general jurisdiction in the Russian Federation", decides:
1. Draw the attention of the courts to the fact that the provisions of Article 37 of the Criminal Code of the Russian Federation apply equally to all persons who are within the scope of the Criminal Code of the Russian Federation, regardless of professional or other special training and official position, whether the person caused harm during protection of their rights or the rights of other persons, legally protected interests of society or the state, as well as regardless of the possibility of avoiding a socially dangerous encroachment or seeking help from other persons or authorities.
2. In Part 1 of Article 37 of the Criminal Code of the Russian Federation, a socially dangerous assault, accompanied by violence endangering the life of the defender or another person, is an act that, at the time of its commission, created a real danger to the life of the defender or another person. The presence of such an encroachment may be evidenced, in particular:
infliction of harm to health that creates a real threat to the life of the defender or another person (for example, injuries to vital organs);
the use of a method of encroachment that creates a real threat to the life of the defender or another person (use of weapons or objects used as weapons, strangulation, arson, etc.).
An immediate threat of the use of violence dangerous to the life of the defender or another person may be expressed, in particular, in statements about the intention to immediately inflict death or bodily harm on the defender or another person, life-threatening, demonstration by the attacker of weapons or objects used as weapons, explosive devices if, given the specific situation, there were grounds for fearing that the threat would be carried out.
24. Detention of a person who has committed a crime. Grounds for detention and conditions for the legality of actions for his detention. The difference between causing harm during the arrest of a criminal from necessary defense.
1. In accordance with the law, it is not a crime to cause harm to a person who committed a crime during his detention in order to deliver to the authorities and prevent the possibility of committing new crimes by him, if it was not possible to detain such a person by other means, and at the same time the harm caused did not exceed the limits of necessity . 2. The detention of a criminal is lawful only if a number of conditions regarding the grounds for detention contained in Art. 91 of the Code of Criminal Procedure of the Russian Federation: 1) if a person is caught while committing a crime or immediately after committing it; 2) the victims or eyewitnesses point to the person as having committed the crime; 3) when obvious traces of a crime are found on this person or his clothes, with him or in his dwelling; 4) if the person tried to escape, or does not have permanent place residence, or his identity has not been established. Conditions for the legitimacy of causing harm during the detention of a criminal: 1) Detention is allowed only in relation to the person who committed the crime (regardless of the stage of the crime). The commission by a person of another offense cannot be the basis for causing harm to him. 2) Timeliness of detention. Obviously, the right to detain a person arises from the moment a crime is committed (preparation for a crime, attempted crime, completed crime). With the expiration of the limitation period for criminal liability or the limitation period for the execution of a sentence, the right to detain a person is lost. 3) Harm must be caused to the person who committed the crime, and not to third parties. When causing harm to the legally protected interests of third parties, the rules of extreme necessity are applied. 4) Harm during detention must be inflicted by force. This means that in the actual situation, such a course of action was the only possible one. 5) Causing harm to a person who has committed a crime can only be for the purpose of bringing him to the authorities and preventing him from committing new crimes. Causing the death of a detainee is permissible only as a necessary defense. 6) The harm caused must correspond to the nature and degree of public danger of the crime committed by the detainee. 7) The harm caused should not exceed the limits necessary for the detention of the person who committed the crime. Exceeding the measures necessary to detain a person who has committed a crime is the use of such measures that clearly do not correspond to the nature and degree of public danger of the crime and the circumstances of detention. As a result, the detainee is inflicted excessive harm, not caused by the gravity of the crime committed by him and the situation of detention. Two types of excess of the measures necessary for the detention of a person who committed a crime can be distinguished: a clear discrepancy between the harm caused by the gravity of the crime committed by the detainee and a clear discrepancy between the harm caused to the conditions of detention. 3. The difference between detention and necessary defense: The latter is the suppression of an ongoing, already begun (or beginning when there is a real threat of attack) and not yet ended socially dangerous encroachment on the person, rights and interests of the defender or other persons, the interests of society or the state. !a socially dangerous offense (crime) has already been completed or stopped and harm is inflicted on the person who committed the crime, solely for the purpose of detaining him for delivery to the authorities and preventing him from committing a new crime. If the detained criminal resists and uses violence against the persons carrying out his detention, then the latter again have the right to the necessary defense. This is important to understand, since the law establishes more stringent conditions for the lawfulness of infliction of harm during detention compared to such conditions in the case of necessary defense.
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INTRODUCTION
CHAPTER 1
1.1 The concept and types of aggregate crimes, the difference between the aggregate and a complex single crime
1.2 Types of aggregate crimes
1.3 The difference between the aggregate and other types of multiplicity of crimes
Chapter 2
2.1 Aggregate stages of sentencing
2.2 Ways of combining punishment, their legal nature and application criteria
CONCLUSION
LIST OF USED LITERATURE
INTRODUCTION
During the existence human society, in it for many years, certain norms of relations have been developed, which eventually degenerated into the norms of law. Over time, various branches of law have emerged, and measures of responsibility and coercion have been formed within each of them. Along with disciplinary, administrative, civil liability, an institution of criminal liability has developed, within which the most stringent measures of state coercion are concentrated, among which, in addition to property measures, there are measures related to deprivation of liberty, a ban on engaging in certain activities. These measures, ultimately, can change the whole life of a person, or even take his life.
An important factor in this matter is that only such a punishment that is adequate to the deed, which most fully reflects the social danger of the committed act, can ensure the goals facing criminal punishment. At the very beginning of the 20th century, the famous Russian scientist Nikolai Stepanovich Tagantsev wrote: “First of all, each criminal act taken separately, especially important and complex, already attracts our attention with its life situation: how often the crowd sits days in the meeting room, tirelessly following various phases of the life drama unfolding before her. Tagantsev N. S. Russian criminal law. Lectures. The part is common. In 2 volumes - M., 1994. - T. 1. - S. 39.
It is obvious that the mechanism for imposing criminal penalties should be fully developed in order to avoid possible errors and, moreover, abuses.
For a correct understanding of the structure of my work, it is necessary to outline the approach from the point of view of which I will investigate the issue of sentencing for the totality of crimes. This issue can be considered from two sides. Firstly, this is the qualification of crimes in aggregate, and secondly, this is the appointment of punishment in aggregate. A number of authors adhere to the point of view that these issues should be studied in a comprehensive manner, that is, the issues of sentencing should be considered inseparably from the issues of qualification. Others believe that sentencing for cumulative crimes can be an independent topic for research.
CHAPTER 1
1.1 The concept and types of the totality of crimes, the difference between the totality and the complex single crime
The concept of a set of crimes is given in the current legislation, namely in Art. 17 of the Criminal Code of the Russian Federation. Since the entry into force of the specified normative act (first published in the “Collection of Legislation” dated June 17, 1996 No. 25), this article has been amended twice by the adoption of Federal Laws No. 162-FZ dated 08.12.2003 and dated 21.07. 2004 No. 73-FZ.
Let us turn to the definition given in Part 1 of Art. 17 of the Criminal Code of the Russian Federation: “The commission of two or more crimes is recognized as a set of crimes, for none of which a person was convicted, except in cases where the commission of two or more crimes is provided for by the articles of the Special Part of this Code as a circumstance entailing a more severe punishment.” In the original version of the Criminal Code of the Russian Federation, among the types of multiplicity of crimes, repetition was also mentioned (Article 16 of the Criminal Code of the Russian Federation - invalidated by the Federal Law of 08.12.2003 No. 162-FZ). But the legislator excluded the institution of repetition from the current legislation and expanded the concept of the totality by supplementing its scope with repetition. So from the original text of Part 1 of Art. 17, the words were deleted: "provided for by various articles or parts of an article of this code." These changes, plus the exclusion from the articles of the Special Part of the qualifying feature of repetition, has created some problems for the qualification of crimes.
This provision helped to distinguish such a murder from a murder committed more than once. However, the question of how to qualify several murders, if they were not covered by a single intent, remains not clearly regulated enough.
With a certain degree of probability, it can be assumed that in order to solve this particular problem, the amendments introduced by the Federal Law of the Russian Federation of July 21, 2004 in Art. 17 of the Criminal Code of the Russian Federation. With the entry into force of these changes, the totality of crimes, as mentioned above, is recognized as the commission of two or more crimes, for none of which the person was convicted, except in cases where the commission of two or more crimes is provided for by the articles of the Special Part of the Criminal Code of the Russian Federation as a circumstance leading to more severe punishment.
Thus, since in paragraph “a” part 2 of Art. 105 of the Criminal Code of the Russian Federation, as a circumstance entailing a more severe punishment, provides for the murder of two or more persons, then the commission of, say, two murders, it would seem, does not require, based on the above rule, qualification of the deed in aggregate. However, the addition to Art. 17- of the Criminal Code of the Russian Federation, by indicating an exception to the rule, did not eliminate the question of whether, when deciding on the qualification of acts in aggregate, one should take into account the presence or, on the contrary, the absence of a single intent to kill these persons.
"Spreading" the murders of two or more persons according to paragraphs of Part 2 of Art. 105 of the Criminal Code of the Russian Federation before the changes introduced by the Federal Law of December 8, 2003, was carried out on the basis of the doctrine of the plurality of crimes. One crime was committed (let it be the murder of several persons - then paragraph "a" part 2 of article 105 of the Criminal Code of the Russian Federation was charged) or several (then the act was qualified under paragraph "n" part 2 of article 105 of the Criminal Code of the Russian Federation), was determined in depending on the establishment of the presence or absence of a single intent. That is, if we talk about the murder of two persons, it was necessary to prove that the guilty person had a desire to cause death to the second person before the end of the objective side of the deprivation of life of the first victim.
P. Yani writes that: “and now it is necessary to refer to the relevant rule when qualifying, from which the limitation of the provision of Art. 17 of the Criminal Code, introduced by the Federal Law of July 21, 2004. This limitation lies in the fact that, even taking into account the current version of this provision, the aggregate is excluded only when the murder of two persons was covered by a single intent. Otherwise, i.e. with a “disconnected” intent, the deed, in principle, cannot be recognized as one crime” For more details, see P. Yani. Conjugacy does not exclude a collection. // Legality. - 2005. - No. 2. - S. 32. .
This example clearly demonstrates the fact that the legislative regulation of the institution of the totality does not fully meet all the requirements, in this regard, we can assume that we will witness many more changes (and, more likely, fundamental ones) in the current legislation.
So, the concept of the totality of crimes established by the legislator in Part 1 of Art. 17 of the Criminal Code of the Russian Federation we have designated.
Let us single out the differences between a continued crime and a set of crimes. With a continued crime, one crime is committed, and with a combination of two. But a serious question arises how to distinguish a crime committed by several similar independent actions from the aggregate, if the objective side can be absolutely identical. The Supreme Court of the Russian Federation in its decisions indicates that the main role will be played by the subjective side. Consider an example. Let's try to distinguish the continued theft from the totality of crimes. The Decree of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in cases of theft, robbery and robbery" states that the continued theft consists of a number of identical criminal acts committed by seizing someone else's property from the same source, united by a single intent and constituting taken together as a single crime. Here are a number of specific circumstances in the presence of which the committed actions will be qualified as one crime. I believe that the signs of continued theft listed here should all be present. The wording itself speaks for itself. In the absence of at least one of them, the deed should be qualified as a set of crimes. To assert that the main criterion for differentiating a continuing crime and a set of crimes is the subjective side, the following allows me: in the presence of all the mandatory features necessary for a continuing crime, but in the absence of a single intent, we will qualify the actions of the perpetrator according to the totality of crimes, and if we establish the presence of a single intent, then we will qualify the deed as a single crime.
Now let's separate the totality from the crime with a double form of guilt. In crimes with a double form of guilt, the crime is committed intentionally, but such crimes include certain harmful consequences (in addition to those committed intentionally) that occurred through negligence. In fact, such offenses include two independent acts, but, nevertheless, this is one crime and is legally an independent separate offense. Due to this this species compositions are not formally called the real totality taken into account in the law. And legally, liability in the commission of such acts (for example, part 3 of article 211 of the Criminal Code of the Russian Federation) comes as for a single crime. The commission of such crimes cannot be qualified by the totality of crimes. Yes, and such a mistake cannot be made, since it will not be possible to impose a punishment for the totality of crimes when trying to qualify one offense in the aggregate - there is only one punishment, provided for by part of the article of the Criminal Code of the Russian Federation.
1.2 Types of aggregate crimes
As noted above, the collection has two types. This is a real and ideal set of crimes. Let us turn to the concept of a real aggregate. Based on the normative definition, the following can be deduced: in a real aggregate, a person commits two or more crimes by separate, independent actions, and there is one more condition: a person should not have been previously convicted for any of the crimes committed.
The real population has a number of similarities with the ideal population. In both ideal and real aggregates, several crimes are committed and several norms are applied for qualification. But according to Professor Yu. A. Krasikov, the line of criminal behavior is more pronounced in the real aggregate Commentary on the Criminal Code of the Russian Federation // Under. ed. V. M. Lebedev. - M., 2004. - S. 245. . I believe that we should agree with this, since with an ideal totality there is only one action, although it qualifies under two articles, with a real totality, a person commits crimes without any connection between them, which from the point of view of the criminological danger of a person is much more serious (with the same severity of the crimes themselves).
Based on the foregoing, it is possible to formulate the signs of a real population.
First, there must be no conviction for any of the crimes included in the aggregate (taking into account the above example).
Secondly, the crimes included in the real totality are committed by various, unrelated actions (inaction).
Thirdly, the crimes that make up the real aggregate can be classified both under different articles or parts of the article, and under the same part (let's not forget the changes made in December 2003), therefore the real aggregate can be formed by both different and homogeneous crimes. .
We now turn to the concept of an ideal population. As already mentioned, it is given in Part 2 of Art. 17 of the Criminal Code of the Russian Federation.
The ideal set of crimes is characterized by a single criminal act, which causally causes the onset of socially dangerous consequences, and the objects of the offense may be different, or they may be homogeneous. Moreover, the objects of encroachment should not be correlated as part and whole, but should consist of various social relations.
Let us note some characteristics of an ideal population.
Firstly, the basis of the crimes included in the ideal set are acts that are committed simultaneously. However, I believe that one should agree with G. N. Khlupina, who considers the sign of simultaneity to be derivative, and therefore redundant: if both crimes are committed by the same action, it is natural that they are simultaneous Khlupina G. N. Qualification of several crimes: text of lectures . - Krasnoyarsk. 1998. - S. 28. .
Considering the concept of an ideal set, it is impossible not to turn to another important problem. When qualifying crimes, differentiation of the ideal set and the composite norm presents serious difficulties. Composite norms, sometimes they are called the ideal set taken into account in the law, can be divided into two types: firstly, both compositions included in the norm are absolutely concretely defined, secondly, one of the compositions is described using the sign of a high degree of abstraction Pitetsky V. V. On the delimitation of the ideal set of crimes and a composite norm in criminal law. / Conference materials: Criminal law: state and development prospects. -Krasnoyarsk. 2002. - S. 56. .
There are no special problems with the qualification of crimes provided for by the composite norms of the first type, here you can act according to the rule proposed by A. S. Gorelik, he believes that a composite norm should be applied, since it more fully reflects criminal behavior and the social danger of the act. VN Kudryavtsev proposes the following criterion for delimiting an ideal set from a composite norm. If the object of the attack and harmful effects are covered by one norm, then this is an ideal set taken into account in the law, that is, a composite norm, if the object of a criminal encroachment and caused or possible harm are not covered by one norm of the Special Part of the Criminal Code, then the imposition of punishment should be based on the application of the institute of cumulative crimes.
1.3 The difference between the aggregate and other speciesmultiplicity of crimes
In order to fully delineate the concept of the totality of crimes, it must be distinguished from other types of multiplicity.
Let us single out the possible types of multiplicity and the very concept of multiplicity of crimes. So, the plurality of crimes is a combination in the behavior of the same person of several acts provided for by the criminal law, and each of the acts must contain an independent corpus delicti.
The Criminal Code of the Russian Federation of 1996 clearly defined the possible types of plurality. It should be noted that the repeatedness, excluded from the text of the law, did not disappear completely, but, having slightly changed, passed into Art. 17 and turned into a collection of crimes.
So until December 2003 Art. 16 of the Criminal Code of the Russian Federation repeatedly called the commission of two or more crimes provided for by one article or part of an article of the code. In the Special Part, in many articles, there was such a qualifying feature as repetition. In paragraph 3 of Art. 16 of the Criminal Code of the Russian Federation contained an indication that if there was such a qualifying feature in the article of the special part, then the corresponding paragraph of the article of the Special part was applied. With the "transformation of repetition into totality" in Art. 17 of the Criminal Code of the Russian Federation, an indication appeared that if the commission of two or more crimes (provided for by one article or part of the article) is provided for by the articles of the special part as a circumstance entailing a more severe punishment, the aggregate does not apply and liability arises under the qualifying paragraph or part of the article Special part.
The concept of the totality of crimes was discussed above, so in this part I will not give it again. Let us turn to the concept of recidivism. Article 18 of the Criminal Code of the Russian Federation gives the following definition: the commission of an intentional crime by a person who has a criminal record for a previously committed intentional crime is recognized as a recidivism of crimes. In parts 2 and 3 of this article, the types of relapse (dangerous and especially dangerous) are given. the federal law No. 162-FZ of 08.12.2003 made some changes, but they did not touch the concept of relapse, but only affected the mechanism for determining the degree of danger.
The amendments made to the Criminal Code by the above law, in my opinion, eliminated one of the important theoretical contradictions. When the code was Art. 16 (Repetition of crimes) there was some subordination between the concept of repetition and recidivism. In article 16 of the Criminal Code of the Russian Federation there was no indication of the absence of a criminal record for committed crimes, therefore the volumes of concepts intersected. Now the legislator has eliminated this contradiction, since the repetition has actually passed into the totality, where there is a clear indication of the absence of conviction for previously committed crimes.
So, based on the current legislation, we need to distinguish only between relapse and the totality, which is absolutely not difficult. The key point in distinguishing between these types of plurality is the presence of a criminal record and it has become very easy to separate them. This is what the correct fixing of concepts in the law means!
It is important to note that only a guilty verdict that has entered into legal force acquires such properties as binding and prejudice, and turns to execution. Prior to its entry into force, it does not have such legal consequences and can be appealed or protested in cassation. Cases of committing a new crime by a person after the pronouncement of the sentence, but before its entry into force, should be considered according to the rules of the article on the cumulative sentences.
There is no need to talk about relapse in such situations, since there is no obligatory sign - a criminal record.
After the entry into force, the sentence may be changed or canceled by the supervisory authority. In cases where a repeated crime was committed before the verdict was overturned, there will also be no recurrence of crimes, since the guilty verdict canceled by the cassation or supervisory instance means that the conviction did not exist and, therefore, the subsequent crime does not form a relapse.
N. Korotkikh points out that when speaking about a criminal record as an obligatory sign of recidivism, it is necessary to keep in mind not just a guilty verdict that has entered into force, but a sentence by which a guilty person is sentenced, regardless of its type and size. Is there a relapse in cases where the law provides for the possibility of applying to persons who have committed crimes, not criminal punishment, but other measures of criminal law? It is well known that the use of compulsory measures of educational influence or compulsory measures of a medical nature excludes a criminal record 1 ShortH. Conviction as a sign of recidivism of crimes // Legitimacy. - 2005. - No. 1. - S. 37. .
It is also necessary to distinguish between the totality of crimes and the totality of sentences. The difference is fundamental. We can apply Article 70 of the Criminal Code of the Russian Federation only if the person has already been convicted for the first crime that is included in the set under consideration. In the aggregate, this cannot be (but let's not forget if the first crime became known after the conviction for the following ones). And on the issue of distinguishing between the totality of sentences and recidivism key point will be the moment of execution of punishment. If the punishment has not yet been executed, then we must apply the aggregation of sentences, and if the punishment is executed, but the conviction is not expunged or not extinguished, there will be a relapse of crimes.
As G. N. Khlupina points out in his works, it is necessary to distinguish the totality of crimes from the competition of norms. With competition, of course, only one crime is committed, while with a combination of crimes, at least two. In citing this difference between aggregate and competition, it must be understood that competition has nothing to do with plurality and is given only for a more complete picture. Now that we have outlined in general terms some of the boundaries of the term cumulative crimes, we can move on to the main issues of my work, which are directly devoted to sentencing for cumulative crimes.
Chapter 2
2.1 Aggregate stages of sentencing
Turning to the issues that directly constitute the mechanism for sentencing in aggregate, I will begin their study from the regulatory framework. Part one Art. 69 of the Criminal Code of the Russian Federation says that the punishment is assigned separately for each crime committed. Moreover, this rule is mandatory. Even in Soviet criminal law, this requirement was fixed. What is the reason for enshrining such a requirement in law? After all, if this order is violated, the sentence can simply be canceled.
So, as you can see, in the case of a combination of crimes, the imposition of punishments consists, as it were, of two stages: 1) determining the punishment for individual crimes qualified according to different norms of the law, and 2) imposing a cumulative (final) punishment.
Let us try to outline some of the reasons for distinguishing two stages. Firstly, as I have already noted above two identical crimes, exactly as there are no circumstances for their commission. Consequently, in the aggregate, each of the crimes included in it has separate features in addition to qualifying signs. Very often, the courts comply with this requirement only formally, and as a result, foreseeing that at the stage of sentencing in aggregate, the method of absorption can be applied, they deliberately increase the punishment for one of the crimes included in the aggregate. This practice is not acceptable, as it is contrary to the principle of justice.
Secondly, the presence of two stages, in addition to the fundamental assessment of each act as an independent crime, allows us to solve a number of practical problems. A separate sentencing is the basis for determining the final punishment in the aggregate, subject to actual serving. It also contributes to the possibility of checking and resolving cases in the cassation and supervisory instances, especially when they cancel or change the sentence in terms of conviction for one of the crimes, in connection with which the sentence for another crime remains to be served or the amount of punishment is reviewed in aggregate.
Often the amount of punishment for one crime affects the legal consequences, determined in relation to the entire punishment in aggregate.
Obviously, in such a situation, a one-stage scheme for imposing punishment will inevitably lead to a violation of most of the principles of criminal law, since it will not be able to adequately reflect the public danger.
Speaking about the importance of distinguishing two stages, it is necessary to understand that the stages have the same meaning, and when imposing punishment, one of them cannot be neglected. Treat one of them as primary or secondary. And while emphasizing the importance of any stage in the future, in no case do I want to underestimate the importance of another.
The first stage acquires special significance when assigning additional punishment in case of a combination of crimes.
Let us define some essential aspects of this type of punishment. The Criminal Code of the Russian Federation does not differentiate the purpose of punishment depending on its type. According to the fair opinion of M. D. Shargorodsky, “all specific types of punishments included in the system of punishments differ from each other not in the final goal that is set for them, but in the means of achieving it.” Punishment is applied in order to restore social justice, as well as to correct the convict and prevent the commission of new crimes (part 2 of article 43 of the Criminal Code of the Russian Federation).
I consider it possible to agree with A. L. Tsvetinovich, who in his monograph “Additional punishments: functions, system, types” indicated that the role of additional punishment is that it facilitates the achievement of the goals set by the cumulative punishment. Among the functions of additional punishment, it is necessary to highlight the provision of individualization of punishment and the strengthening of the punitive function of the main punishment, if it is imposed in the maximum amount. It should be understood that if the main punishment is not imposed in the maximum amount, then strengthening its punitive function is not appropriate, since there is still a reserve for toughening the punishment. But as soon as the maximum size of the main punishment is assigned, then the additional one immediately, in addition to the first function, begins to strengthen the punitive characteristic of the punishment. 2 Shargorodsky M. D. Questions of the general doctrine of punishment in the theory of Soviet criminal law at the present stage. - M., 1967. - S. 24.
When applying Art. 58, the court may have some difficulties in determining the correctional institution for a person who has committed a crime, both intentionally and through negligence. If in this case intentional crimes are crimes of small or medium gravity, and the person has not previously served a sentence of imprisonment, serving a sentence in a correctional institution is assigned in the manner prescribed by clause a, part 1, art. 58 of the Criminal Code of the Russian Federation. That is, the sentence must be served in a colony-settlement, or, having indicated the reasons, the court may appoint a general regime colony.
In the case of a conviction of a person who has not previously served a prison sentence, for a set of crimes, which includes crimes of small and (or) medium gravity, as well as grave crimes, and the punishment for grave crimes is not related to deprivation of liberty, but for crimes of small or medium gravity, deprivation freedom, the type of regime is determined in accordance with paragraph "a" of Art. 58.
It is also important to note that if there are grounds specified in part two of Article 58 of the Criminal Code of the Russian Federation, a person sentenced to imprisonment for a combination of crimes, including for a serious crime for a term of more than five years, may be sentenced to serving a sentence in prison for part of the term. punishment for that crime. A person convicted for especially dangerous recidivism of crimes may be sentenced to serving a sentence in prison for a part of the term of punishment imposed on the totality of crimes.
2.2 Ways of combining punishment, their legal nature and application criteria
The current Criminal Code of the Russian Federation knows several ways of combining punishment, which have existed since its adoption and have been preserved in all its subsequent editions. In fact, the grounds for using these methods have changed, but the methods themselves have not changed.
Initially, the punishment is imposed for each of the crimes included in the totality, in compliance with all the principles of criminal liability, and then the final punishment is assigned for the totality of crimes.
So Art. 69 of the Criminal Code of the Russian Federation indicates the following methods of combining punishment: absorption of a less severe punishment by a more severe one, partial addition of punishments and full addition of punishments.
Let's define the essence of each of them. Absorption of a less severe punishment by a more severe punishment. According to part 2 of Art. 69 of the Criminal Code of the Russian Federation this method combining punishments can be applied only in the case when the crimes committed in the aggregate are crimes of small and medium gravity. It is necessary to highlight one more possibility when a method of absorbing a less severe punishment by a more severe one can be applied. Although the third part of Article 69 of the Criminal Code of the Russian Federation provides only for the method of adding up punishments, there are exceptions to this rule. For example, when a person is sentenced for a separate crime, not in the form of imprisonment for a certain period (clause “l” of article 44 of the Criminal Code of the Russian Federation), but in the form of life imprisonment (clause “m” of article 44 of the Criminal Code of the Russian Federation), the method of partial addition punishment cannot be applied. Since life imprisonment will in any case absorb a less severe punishment in the form of imprisonment for a certain period. In this case, the so-called punishment absorption method is used. In all other cases, full or partial summation of penalties is applied. The essence of the method of absorption is that the cumulative punishment imposed on a person will be equal to the punishment for the most serious crime of the committed ones, and it is precisely the one assigned, and not provided for. It is important to note that the number of crimes committed does not matter, formally there may be ten or twenty, and the court will have the right to apply the method of absorbing a less severe punishment with a more severe one.
When I wrote about the principles of criminal law and their operation at the stage of sentencing in the aggregate, I pointed out that such punishment does not fully comply with the principle of justice. It really is. When imposing punishments for individual crimes, the judge cannot (this is a gross violation) take into account the number and severity of the crimes committed in the aggregate (otherwise, this will be a violation of the principle of individualization of punishment), but is obliged to impose punishment for a separate crime according to the same rules as for a single crime. crime. And if, when assigning the final punishment for the totality of crimes, the court applies the method of absorption, the following problems arise: 1) the punishment will not be fair, since the function of retribution will not be fulfilled, namely, the victims of other crimes (the punishment for which has been absorbed) will not receive satisfaction. 2) the punishment imposed for several crimes will be equal to the punishment that was imposed for one crime, respectively, in fact, all other crimes will be depenalized, although formally, legally, everything will be legal and correct.
In my opinion, this problem can be solved by enshrining in the law the minimum mandatory share of punishment for each crime (depending on the severity, or, say, the maximum or minimum limit fixed in the article of the Special Part of the Criminal Code of the Russian Federation) which should be included in the final punishment imposed on the aggregate crimes. Such a method as the absorption of a less severe punishment should be excluded as inconsistent with the current legislation. It is also vicious from the point of view of criminology, where the rule of the inevitability of punishment is used to prevent crimes.
Its existence in the Criminal Code of the Russian Federation was justified in the presence of the institution of repetition. However, the removal from the Criminal Code of the Russian Federation Art. 16 (repetition of crimes); exclusion from the definition of cumulative crimes (Article 17 of the Criminal Code) of such an cumulative feature as the commission of two or more crimes provided for by various articles or parts of an article of the Criminal Code; the exclusion of the named qualifying feature from all qualified compositions of the Special Part of the Criminal Code of the Russian Federation, as well as the reformation of the signs of recidivism, significantly change the content of the concept and the nature of the structural elements of the institution of multiple crimes. The actual destruction of the institute of a set of crimes that has developed in judicial practice and recognized in the theory of criminal law, with the admissibility of applying the principle of absorption of a less severe punishment by a more severe one (part 2 of article 69 of the Criminal Code) when imposing punishment, creates a danger of the formation of legal conditions for impunity for many crimes and medium severity.
So, if all the crimes committed in aggregate are crimes of small and medium gravity, then the final punishment is imposed by absorbing a less severe punishment by a more severe one, or by partial or complete addition of the imposed punishments. At the same time, the final punishment may not exceed more than half the maximum term or amount of punishment provided for the most serious of the crimes committed. This provision is part 2 of Art. 69 of the Criminal Code of the Russian Federation and is a criterion for applying the principle of absorption of punishments.
If at least one of the crimes committed in aggregate is a grave or especially grave crime, then the final punishment is imposed by partial or complete addition of punishments. At the same time, the final punishment in the form of deprivation of liberty may not exceed more than half the maximum term of punishment in the form of deprivation of liberty provided for the most serious of the crimes committed. As you can see, the method of adding up punishments can be used in practice when imposing punishment for the totality of any crimes.
The method of adding punishments is less controversial from the point of view of the theory of criminal law. Its essence lies in the fact that the punishments imposed for individual crimes add up.
In addition, the simultaneous application of the principles of absorption and addition of punishments is possible.
Full addition takes place when the final punishment is the sum of those imposed for individual crimes. Full addition of punishments is an ordinary arithmetic operation that does not cause any difficulties in application.
The situation is somewhat different with the use of partial addition. With partial addition, the final punishment must be less than the sum of the punishments, but cannot be equal and even less than any of the punishments imposed for individual crimes. If, for example, two years' imprisonment is imposed for one crime, and three years' imprisonment for another, then when partial addition is applied, the final punishment cannot exceed five years, that is, the sum of the punishments, but must be more than three years, that is, the maximum high punishment for a particular crime.
CONCLUSION
Let's summarize the work done. This is an insufficiently clear regulation of the institution of sentencing in the aggregate, and most of the problems are caused by the lack of a clear conceptual apparatus. The next problematic point is the gradual complication of the mechanism for sentencing. It is also necessary to pay attention to the lack of an indisputable and generally accepted theoretical basis in the issues of qualifying crimes committed in the aggregate, as well as in matters of sentencing. Most of the problems in this regard arise from the contradictions arising in the implementation of the principles of criminal law. It is clear that any principle of law cannot be implemented only in some part, if there is a principle, then it must act. For now existing mechanism is somewhat of a compromise. Implemented criminal law principles in some part limit the action of each other. This is very clearly illustrated in the implementation of the principle of the inevitability of punishment and in the application of the method of absorption of punishment.
The issues of imposing a just punishment have three sides: the existence of the right to punish the person who committed the crime, the characterization of punishment as a measure ( quality characteristic) and characterization of punishment as a process. A full-fledged mechanism for sentencing should ensure the implementation of the principle of justice in these three aspects. But when applying the method of absorption, we are faced with the fact that in relation to the victim this is not fair, since the qualitative characteristics of the punishment imposed will be the same as when he commits one crime, in relation to another person.
In connection with what has been said above, it seems that the method of absorption by one punishment of another should be excluded. He could be replaced special way addition, where the minimum share for each punishment would be provided.
Now the Criminal Code has actually leveled (in some cases) responsibility for some crimes included in the aggregate. Although two crimes, even if they are of minor gravity, the total public danger is higher than that of one. In my opinion, the imposed punishment for the totality of crimes should always reflect this, including if the crimes included in the totality have a minimum public danger.
To solve the problems outlined above, a constant search is needed in the development of a theoretical framework. But in practice, many researchers who have previously studied the institution of plurality have not yet responded to the changes made to the Criminal Code of the Russian Federation and their attitude to these novels is not clear.
As I said, in my work, I evaluate the changes made in 2003 and 2004 to Art. 17 and Art. 69 of the Criminal Code of the Russian Federation positively. But problems still exist. The presence of the theoretical contradictions identified in my work, ultimately, leads law enforcers to make mistakes.
I believe that in the near future theorists will react to the changes made, and we will witness the next changes in the institution of sentencing for the totality of crimes.
LIST OF USED LITERATURE
1. The Constitution of the Russian Federation (as amended on March 25, 2004) // Rossiyskaya Gazeta dated December 25, 1993, No. 237, NWRF dated March 29, 2004, No. 13, art. 1110.
2. The Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ (as amended on December 28, 2004) // CZ of the Russian Federation of June 17, 1996, No. 25, art. 2954, SZ RF dated 01/03/2005, No. 1 (part 1), art. 13.
3. Gorelik A. S. Competition of criminal law. / A. S. Gorelik. -Krasnoyarsk. 1996.
4. Gorelik AS Punishment for the totality of crimes and sentences. / A. S. Gorelik. - Krasnoyarsk, 1991.
5. Gubaeva T. Punishment for the totality of crimes / T. Gubaeva, V. Malkov // Russian justice. - 1998. - No. 6.
6. Karmashev S. B. Restoration of justice as the goal of criminal punishment. / S. B. Karmashev. - Krasnoyarsk, 2004.
7. Kachurin D. V. General principles of sentencing / D. V. Kachurin // Russian judge. - 2002. - No. 8.
8. Kitaev N. N. Unjust sentences to death. System analysis of mistakes made. / N. N. Kitaev. - S.-Pb., 2004.
9. Commentary on the Criminal Code of the Russian Federation // Under. ed. V. M. Lebedev. - M., 2004.
10. Korotkikh N. Conviction as a sign of recidivism / N. Korotkikh // Legality. - 2005. - No. 1.
11. Krasikov Yu. A. Plurality of crimes (concept, types, punishability). / Yu. A. Krasikov. - M., 1988.
12. Kudryavtsev V. N. Theoretical basis classification of crimes. / V. N. Kudryavtsev. - M., 1963.
13.Malkov V.P. Multiplicity of crimes and its forms under Soviet criminal law. / V. P. Malkov. - Kazan. 1982.
14. Malkov V. P. Redemption and removal of a criminal record upon conviction for a combination of crimes and sentences / V. P. Malkov-// Russian justice. - 1998. -№6.
15. Malkov V. P. The totality of crimes. / V. P. Malkov. - Kazan, 1974.
16. Melnikova Yu. B. Differentiation of responsibility and individualization of punishment. / Yu. B. Melnikova. - Krasnoyarsk. 1989.
17. Nikiforov A. S. The totality of crimes. / A. S. Nikiforov. - M., 1965.
18. Pitetsky VV On the distinction between the ideal set of crimes and the composite norm in criminal law / Materials of the conference: Criminal law: state and development prospects. - Krasnoyarsk. 2002.
19. Sergeev V. I. Tax crimes: changes in the Criminal Code of the Russian Federation did not live up to expectations / V. I. Sergeev // Tax disputes. Theory and practice. - 2004. - No. 6.
20. Smolentsev E. V. Appointment of punishment by the court in case of a combination of several crimes and several sentences / E. V. Smolentsev // Soviet state and law. - 1982. - No. 9.
21. Soviet encyclopedic Dictionary. - M., 1987.
22. Struchkov N. A. Punishment for the totality of crimes. / N. A. Struchkov. - M., 1957.
23. Tagantsev N. S. Russian criminal law. Lectures. The part is common. In 2 vols. -M, 1994.-T. 1.
24. Tolmachev O. It is necessary to be principled in observing the principles of criminal law / O. Tolmachev // Russian justice. -- 2002. - no. 9.
25.Criminal law: General part / Otv. ed. I. Ya. Kozachenko, 3. A. Neznamo-va. - M., 2000.
26. Khlupina G. N. Qualification of several crimes: text of lectures. / G. N. Khlupina. - Krasnoyarsk. 1998.
27. Tsvetinovich A. L. Additional punishments: functions, system, types. / A. L. Tsvetinovich. - Kuibyshev, 1989.
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