Circumstances that preclude the crime of the act, Necessary defense (in the edition of the Federal Law of March 14, 2002 No. 29-FZ) - Commentary to the Criminal Code of the Russian Federation

Circumstances precluding the crime of the act

Necessary defense (in the amended version of Federal Law No. 29-FZ of March 14, 2002)

1. It is not a crime to harm an infringing person in a state of necessary defense, that is, in the protection of the individual and the rights of the defending or other persons protected by law, the interests of society or the state from socially dangerous assault, if this encroachment was associated with violence dangerous to the life of the defending or other person , or with an immediate threat of such violence.

2. Protection from encroachment, not involving violence, dangerous for the life of the defending or other person, or with an immediate threat of such violence, is legitimate, if the limits of the necessary defense were not exceeded, that is, deliberate actions that are clearly not appropriate to the nature and danger encroachment.

2 1 . Do not exceed the limits of the necessary defense of the defending person, if this person, because of the unexpectedness of the encroachment, could not objectively assess the degree and nature of the danger of the attack (part two.1 introduced by the Federal Law of 08.12.2003, "162-FZ) .

3. The provisions of this article apply equally to all persons irrespective of their professional or other special training and official position, and also regardless of the possibility of avoiding socially dangerous assault or seeking help from other persons or authorities (part the third in the edition of the Federal Law No. 153-FZ of July 27, 2006).

1. The right to necessary defense from socially dangerous (ie criminal) encroachment is the natural subjective right of every person, recognized and enshrined by law as one of the means of counteracting crime. According to the Constitution, a person, his rights and freedoms are the highest value (Article 2), everyone has the right to life (Part 1, Article 20) and has the right to defend his rights and freedoms in all ways not prohibited by law (Part 2, Article 45 ). At the same time, the exercise of the rights and freedoms of man and citizen should not violate the rights and freedoms of others (Part 3, Article 17).

Through the definition in the law of the grounds and limits of the legitimacy of this unique institution, existing only in criminal law, the incentive function of the criminal law is implemented, aimed at encouraging citizens to actively counter illegal attempts to violate their rights. The comparatively new provisions of the article under review are intended primarily to expand the law enforcement potential of this norm by providing greater freedom to the citizen when defending against criminal encroachments.

2. In part 1 of Art. 37 of the Criminal Code govern the conditions for the legality of protection from criminal assault, involving the use of the most extreme means of violence dangerous to life, or the threat of direct use of such violence against the defending person or persons, as well as other objects of criminal law protection. If such encroachment was real, cash, valid (not imaginary), the defending person is given the right to act with the use of any means and weapons aimed at defense, with the legal right to inflict any harm to the attacker, up to and including deprivation of his life. However, the law does not provide for any restrictions on compliance with the rules of proportionality of means of defense and means of attack, which makes it impossible to qualify in such cases an act as committed in excess of the limits of necessary defense. This position corresponds to Art. 2 and 7 of the Criminal Code. The subjective condition (basis) of the lawfulness of such conduct, based on the principle of guilty infliction (Article 5 of the Criminal Code), is the positive objective specified in the law for protecting the protected interests of an individual, society or state from criminal assault.

The main reason for the legitimacy of defense is the objective nature of the danger to the life of the defending or other person.

Such an objective (real) danger must be a specific act of a person who at the time of commission created a risk to the life of the defending or other person. It is not a crime to harm only an assaulting person and only when protecting from socially dangerous assault. The existence of such an infringement and the degree of its danger to the object of encroachment can be evidenced, in particular: harm to health, which creates a real threat to the life of the defending or other person (for example, injuries to vital organs); the use of the method of encroachment that creates a real threat to the life of the defending or other person (the use of weapons or objects used as weapons, strangulation, arson, etc.) (see Resolution of the US Army Plenum of September 27, 2012 No. 19).

In turn, the immediate threat of violence that is dangerous to the life of a defending or other person can be expressed, in particular, in statements about the intention to immediately inflict death or harm to health, dangerous to life, demonstration of weapons or objects to the defending or other person , used as weapons, explosive devices, if, given the specific situation, there were grounds for fear of this threat.

The main criteria for the unreliable behavior of the defender are: direct damage to the attacking person as a result of committing socially dangerous assault. In this regard, a person who caused harm to another person in connection with the latter's actions, although formally and containing the signs of an act provided for by the Criminal Code, but who is known to the person who caused the harm, because of insignificance not representing public danger (see Resolution of the Plenum of the US Armed Forces No. 19 of September 27, 2012).

3. When protecting from a less intense assault, not involving violence, dangerous for the life of the defending or other person, or with an immediate threat of the use of such violence, the condition for the legitimacy of defense is its proportionality: by virtue of Part 2 of Art. 37 CC of the measure of defense must correspond to the nature and the danger of encroachment. A number of important circumstances that are subject to non-mechanical and individual consideration of issues relating to proportionality, the presence or absence of exceeding the limits of necessary defense are disclosed in the current resolution of the Plenum of the US Armed Forces of September 27, 2012 No. 19.

4. Damage caused in the state of necessary defense is not refundable, if its limits were not exceeded (see Article 1066 of the Civil Code).

5. Part 2 of the commented article legislatively determines the excess of the limits of the necessary defense (excesses of defense) only as deliberate actions that are clearly not appropriate to the nature and the danger of encroachment.

A deliberate crime is recognized only when a person is aware not only of the actual side of his deed and the consequences, but also of the public danger of the deed committed. Consequently, the criminal offense of exceeding the necessary defense limits can take place when, at the time of the suppression of the encroachment (not associated with violence, life-threatening or with an immediate threat of its use), the defender understood the illegality of his actions, realized that he could suppress this encroachment, using other means and methods of protection and causing the infringer significantly less harm than the one that actually occurred. Under the encroachment, protection from which is permissible within the limits established by Part 2 of Art. 37 of the Criminal Code, it is necessary to understand the commission of socially dangerous acts involving violence that is not dangerous for the life of the defending or other person (for example, beatings, causing minor or moderate harm to health, robbery committed with violence not dangerous to life or health).

In addition, such infringement is the commission of other acts (acts or omissions), including by negligence provided for by the Special Part of the Criminal Code, which, although not associated with violence, however, given their content, can be prevented or prevented by causing infringing harm. Such encroachments include, for example, intentional or reckless destruction or damage to someone else's property, deterioration of life support facilities, vehicles or communications.

It should be borne in mind, however, that the state of the necessary defense arises not only from the moment of commencement of socially dangerous encroachment, not associated with violence, dangerous for the life of the defending or other person, but also in the presence of a real threat of such encroachment, i.e. from the moment when the infringing person is ready to proceed to the commission of the corresponding act. The Court it is necessary to establish that the defender had reason to conclude that there is a real threat of encroachment (see Resolution of the US Army Plenum of September 27, 2012 No. 19).

It does not entail criminal liability for intentional infliction of medium gravity or slight harm to health or beatings, as well as causing any harm through negligence, if this was a consequence of the actions of the defending person in repelling a socially dangerous assault. Such actions can not be considered as exceeding the limits of necessary defense, in view of the absence of signs of the wrongfulness of the act and the apparent inconsistency of the protection and harm caused to the nature and degree of danger of encroachment.

6. The specified offenses, being privileged and therefore special, are subject to application in competition with general formations on liability for similar consequences (see Part 3, Article 17 of the Criminal Code).

So, the murder (the general concept of which is given in part 1 of Article 105 of the Criminal Code as an intentional act) should not be regarded according to the qualifying signs provided for in the "& quot ;," g "," e " Part 2 of Art. 105 of the Criminal Code, as well as on the basis of particular cruelty (in particular, due to the multiplicity of wounds, in the presence of relatives close to the victim) if it is committed in a state of sudden violent emotional excitement or when the limits of the necessary defense are exceeded (see paragraph 16 of the resolution of the US Plenum from 27.01.1999 No. 1).

It should be borne in mind that the criminal responsibility for causing harm comes to the defender only in case of exceeding the limits of the necessary defense, i.e. when it will be established in the case that the defender resorted to protection against the encroachment specified in Part 2 of Art. 37 of the Criminal Code, in such ways and means, the use of which was clearly not caused by the nature and danger of infringement, and, without the need to knowingly, inflicted serious harm on health or death on the offender. At the same time, responsibility for exceeding the limits of necessary defense comes only when it is established in the case that the defender was aware that he was causing harm that was not necessary to prevent or suppress a specific socially dangerous assault.

Deliberate infliction of grievous bodily harm in excess of the necessary defense limits, which caused by negligence the death of an encroaching person, should be qualified only under Part 1 of Art. 114 of the Criminal Code (see Resolution of the Plenum of the US Armed Forces No. 19 of September 27, 2012).

Causing death to an infringing subject can be recognized as commensurate, i.e. not exceeding the limits of necessary defense, and in encroachments not involving a danger to the life of the defending or other person. For example, the excess of the necessary defense limits is not the killing of a female rapist in the process of protection from his encroachments, or causing death to the attacker who intended to deprive the defending view, i. cause serious harm to health.

7. Part 21, detailing the provisions of Parts 1, 2, determines the legitimacy of the defense and, consequently, the absence of a corpus delicti in the event that the defending person could not objectively assess the degree and nature of the danger of the attack when it was unexpected, sudden.

Under such circumstances, objectively caused harm can not be qualified as under Art. 108 of the Criminal Code (on murder in excess of the required defense limits), and under art. 109 of the Criminal Code (about causing death by negligence).

The maximum sanctions of these privileged offenses (up to two years of imprisonment) are the same and indicate their attribution to crimes of minor gravity (see 15 CC).

8. Rules on the necessary defense equally apply to all persons, regardless of their qualities, characteristics and capabilities, from professional or other special training and official position, which is enshrined in Part 3 of the article being commented. So, in a number of laws on the status of special subjects of law enforcement agencies, in regulatory acts of other industry affiliation, there are indications that the activities of the said persons are subject to provisions on necessary defense and emergency, established by law. However, these prescriptions do not create new circumstances that exclude the crime of the act, and the question of the legality of the harm done in such cases is to be resolved solely on the basis of the rules of the Criminal Code.

However, the training of special subjects, their special skills can influence the establishment of a possible excess of defense. In particular, it is necessary to take into account the service-normative prescriptions that, when suppressing offenses, detaining persons who committed an offense, using physical force, special means or weapons, depending on the nature and degree of danger of the offense, and the intensity of the opposition, officials are obliged proceed from the fact that the damage caused by eliminating the danger should be minimal.

9. The state of necessary defense can arise when special subjects, in particular servicemen, perform special duties: in carrying out special service (guard duty, border guard), protecting public order, alerting, patrolling, etc. A serviceman, in carrying out these types of service, must protect the relevant facilities, for which he is given the necessary rights, up to the use of weapons. Reflecting possible encroachments, the serviceman acts in a state of necessary defense. At the same time, defensive actions are carried out in the course of performing special duties of the service, governed by laws, military regulations and other military-legal acts. Evasion from fulfilling their requirements for the protection of the relevant facilities under certain conditions can form the composition of a military (Article 340 - 344 CC) or an official crime (Article 285-286 of the Criminal Code).

From exceeding the limits of necessary defense, it is necessary to distinguish cases of misuse of weapons by the commander (commander) in relation to a subordinate when the chief is not in a state of necessary defense and there are no conditions in which the military regulations grant him the right to use weapons, the commanders (chiefs) of the internal troops participating in the protection of public order give orders to subordinates to use special means or weapons, also in the absence of legitimate reasons to that effect. The actions of the respective superiors in such cases form an excess of official authority (Article 286 of the Criminal Code).

The use of weapons by servicemen carrying a special service (protection of public order, etc.), in the absence of conditions for necessary defense and in violation of the requirements of normative acts, should be qualified as a violation of the rules for carrying out a special service (see articles 340-344 of the Criminal Code).

10. Violation of the conditions for the legitimacy of the institutions provided for in this chapter is a circumstance mitigating punishment (paragraph & quot ;, & quot ;, part 1, article 61 of the Criminal Code).

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