3.2.4. Circumstances incompatible with the qualification of guilt. The notion of extreme necessity
In United States imperial law, due attention was paid to the legal formalization of criteria, the existence of which is incompatible with the qualification of the guilty act. According to Art. 10 of the Charter on the punishment of misdemeanors is not imputed to the fault if the act is committed "under duress, from force majeure and the necessary defense". The first of these concepts largely coincides with the definition of extreme necessity, substantiated by Tagantsev, the scientist defined the signs of this concept as follows: "Under extreme necessity is meant the violation of any law-enforceable interest or legal norm for the sake of protecting also the law-protected interest from the imminent imminent danger, but with the difference from defense (necessary defense - note author) that harm is caused not to the attacker, but to third parties, the defense is not directed against the source of danger. " In the above definition, there is no direct indication of one of the qualifying signs of a state of extreme necessity, namely: the danger could not be eliminated by other means and the limits of extreme necessity were not exceeded. In case of emergency, just as in the state of necessary defense, harm is done, but the direction of harmful actions, as Tagantsev noted, is different. In any case, the person's law enforcement actions are not due to his actions, the reasons for the emergence of the state of emergency do not depend on the will of the subject.
3.2.5. Circumstances that mitigate the responsibility for wrongdoing
The circumstances that mitigated the responsibility for the offense, according to the Charter of Penalties, also referred to "severe irritation, which occurred not through the fault of the defendant" (Clause 2, Article 13 of the Charter on Penalties). In the context of modern law enforcement and scientific practice, this concept is characterized as affect (a state of strong emotional unrest). The charter of punishments does not directly use the notion of "affect", although in scientific works there are corresponding theoretical justifications. NS Tagantsev implies, under the affect of "sudden, gusty excitations of the organism, accompanied by somatic and mental changes". The advantages of this interpretation include the consideration of the most important factor of unpredictability, the suddenness of the act: it is obvious that the qualification of affect is possible in the absence of time intervals between the provoking circumstance and the unlawful action caused by it. When determining the state of affect, various ethical categories are taken into account. Excitement can be a consequence of both a positive and negative reaction that induces an affective person to antisocial actions, whereas irritation is caused only by negative external factors.
The interpretation of the affect as a circumstance mitigating responsibility, is contained in Art. 134 Penalties. In contrast to the Charter of Punishment, the necessary condition for the existence of mitigating circumstances in the Code is an affect caused by the actions of the victim - "insults, insults or other acts." Affect in accordance with the Charter of Punishment is a negative reaction of the offender to an external unfavorable factor, in his opinion. At the same time, irritation can be caused by the behavior of the victim, some other person, a group of people, or its presence is not related to physical impact, but is caused by moral or reputational harm caused by the organization or other unfavorable factors. For the qualification of this sign under the Charter of Punishment, it is necessary to confirm the fact that the affect was not caused by the actions of the offender.
According to the Code of Penalties, the affect can be caused by the actions of only one person - the victim, the latter causing the infringer property damage, moral (insults and insults) or physical (bodily) harm, the consequence of which is the negative reaction of the causer of harm (damage) . For the presence of affect, according to the Penal Code, it is necessary to confirm the fact of the crime or attempt. The charter of punishments, establishing circumstances mitigating responsibility, does not mention the attempt.
Correlation of the norms of the Charter on punishments and the Penal Code confirms the imperative of the regulations of the Code: a serious financial situation in the commission of crimes is a consequence of adverse effects, regardless of whether it is due to external circumstances or the actions of the offender. The penal code defines a serious financial situation: "If he (the offender) has committed a crime only at the extreme and perfect (our italics - author's note), there is no means of subsistence and work." To qualify the mitigating circumstance in committing insignificant offenses in accordance with the Charter, there are no exceptional, radical signs required.
The "former impeccable behavior", also attributable to circumstances mitigating responsibility, within the meaning of the Charter of Penalties (Clause 4, Article 13) is not simply the absence of signs of antisocial actions in actions preceding the offense: it is understood that the unimportant the offense is committed for the first time.
Voluntary, before the sentencing, the reward of the person who suffered the harm or loss (Clause 5, Article 13 of the Charter on punishments) is also qualified as a circumstance mitigating responsibility for the offense.
The subject of compensation can only be the victim. In cases where harm is caused to the general state interests, for example, when committing offenses against the order of government (Chapter II of the Charter on punishments), this Charter norm is not applicable. Unlike most of the norms of the Charter, punishments in this case are dominated not by public interests of the state, but by private interests of the victim.
Voluntariness of compensation of damage means a conscious desire of the infringer to eliminate or minimize the harmful consequences of misconduct. The amount of compensation may correspond to the amount of material damage caused or be comparable with it (with partial compensation for harm). Compensation is subject only to property damage ("loss"), moral, physical (bodily) harm is compensated in monetary terms (compare with Article 134 of the Penal Code).
Along with the conscious, willful aspiration to minimize the harmful consequences of misconduct or eliminate them and the damage caused by them (the subjective criterion of voluntariness), the Charter also provides for an objective criterion - "the guilty person's manifestation is possible before the court decision". The actions of the offender are incompatible with the moral or physical impact on his will, compensation for damage or compensation for harm under the coercion of the promulgated verdict of the world court, also denies the fact of voluntariness: the offender fears the use of punitive sanctions and his subsequent actions are due to fear of future punishment. That is why the aspirations of the offender can be sincere only if they precede the verdict. Thus, voluntary compensation for harm is possible only in three cases: after committing a misdemeanor, but until it is discovered; during the proceedings; during the trial, but before the announcement of the decision of the world court.
The actions of the perpetrator are most demonstrable in the first case, at this time he is moved by sincere compassion for the victim and seeks to smooth out the harm done, without being exposed to outside influences, including the actions of law enforcement agencies. The subsequent two possibilities given to the offender to confirm the sincerity of his intentions are less provable: the actions of the police and the court indicate the coercion of the offender. Finally, the decision to compensate for the harm caused at the time of the trial is the least desirable for the offender: the opportunity to confirm the voluntariness of his aspirations in this case entails significant difficulties. The evidence found during pre-trial proceedings and in the court session dominates the aspirations of the offender; thus, only the illusory possibility of the court confirming the sincerity of its actions is preserved. When committing crimes, the sincerity of the actions of the offender for compensation for harm is also taken into account by the court, but with substantial reservations. According to Art. 134 The Code of Penalties to the circumstances, "reducing the fault" violator, refers to "aversion (i.e., elimination." - Author's note) after the commission of a crime of its harmful consequences. " and the "reward of evil caused".
The temporary factors of confirmation of this circumstance are determined by the Penal Code more precisely: the offender is given time from the moment of committing the crime to the final decision of the court. In the Charter on penalties, the initial position of the offender's actions is not defined, but can be revealed in the interpretation of the rule. From the Penal Code, it follows logically that the actions of the offender can be taken into account by the court as reducing guilt until the issue of guilt is resolved, i.e. they must be completed before the court decision is made public.
In contrast to the Charter of punishments, the Penalty Code provides for two subordinate actions of the offender, namely: elimination of harmful consequences and "reward of the evil caused." Only the presence of both circumstances can be taken into account by the court. The violator must not only compensate for the material damage caused by the crime, but also eliminate other socially dangerous consequences that violate the non-property rights and interests of the victim, in these cases the offender must compensate for moral or physical (bodily) harm.
When the norms of the Charter are correlated with punishments and the Penal Code, it is necessary to take into account that in the latter case the emotional attitude of the offender to action is not determined, his actions may be conditioned by the severity of the presented evidence, coercion to give evidence and other similar factors that testify to the influence of the authorities to his will. In other words, the violator is forced to act in front of law enforcement bodies in this way, and not otherwise. He has the right to choose due behavior based on sincere motives, since the Penal Code does not mention the presence of his "good will". The penal code, unlike the Charter on punishments, is more pragmatic: in his art. 134 materialized consequences (compensation of damage or harm) dominate, but not motive motives of the offender's actions.
Confirming the presence of extenuating circumstances is more difficult when committing crimes, but not misdemeanors, as evidenced by the forced duality of the criminal's actions under the Penal Code, whereas under the Charter on punishments, the actions of the offender are reduced to partial compensation for damage or compensation for harm.
The circumstances that mitigated the responsibility for the offenses included the confession and sincere repentance of the defendant (paragraph 6 of Article 13 of the Charter on punishments).
The presence in the defendant's actions of sincerity corresponds to the ethical criteria discussed above, which testifies to the existence of the "goodwill". A sincere repentance must be sincere, conscious and incompatible with all forms of coercion. Along with repentance, the Charter on punishments also provides for a frank confession of the defendant, which is quite logical: one act is due to another, and repentance would not be sincere without prior recognition.
If the defendant truthfully states the circumstances of the offense, he realizes the public danger of the act and, wishing to cooperate with law enforcement agencies, gives evidence. About frankness is indicated by the negative attitude of the offender to the damage or harm caused by the misconduct. Repentance should be justified and rely on the plot and the essence of misconduct, so it is always preceded by recognition.
The Penal Code (Clause 1, Article 134), in addition to the two subjective features discussed above, also provides an objective one: confession and sincere repentance are possible only if the perpetrator was not suspected of committing a crime. It is important to establish that the person is aware of the existence of facts that testify to his involvement in the crime: confession and sincere repentance under the Penal Code are possible only at the stage preceding pre-trial proceedings, otherwise any recognition can not be taken into account by the court as a circumstance, reducing the and mitigating punishment. Obviously, the confession of a person in the act done under the influence of evidence presented by the investigation is devoid of signs of sincerity and candor. For the qualification of circumstances, "reduce the fault" and mitigating punishment, according to the Penal Code it is necessary that the person is not a suspect, a defendant. Moreover, recognition can not be considered sincere after the court confirms the guilt signs.
The Penal Code provides for two types of legal facts that are taken into account in court proceedings and in the application of criminal sanctions: circumstances that reduce guilt and punishment, and circumstances that mitigate punishment (Article 153 of the Code). The latter include:
o appearance with confession;
o recognition and sincere repentance of the suspect;
o cooperation with investigative and law enforcement agencies in the detection of a crime or the prevention of a cooking crime or a simple one;
o "the former long-term service without office and any great merits and dignities";
o long-term presence under the court and in custody of the defendant found guilty of a crime that does not entail deprivation of all rights of the state.The above acts are committed by persons with different statuses - a person for whom no facts of his involvement in the crime, or suspects (appearance with confession), suspects or defendants (cooperation with law enforcement agencies and former "spotless service"), while the defendant or the perpetrator may be given a more humane punishment even in comparison with his minimum limit prescribed by the sanction of the relevant article of the Penal Code.
When qualifying the circumstances that mitigate the punishment, the court has the right to petition the Governing Senate to reduce or change the punishment provided for by law (in accordance with Article 775 of the Criminal Procedure Charter). The government of the Senate, upon the satisfaction of the petition, sent it (with the determination of the measure of the alleged mitigation of punishment) to the emperor, who resolved the matter on the merits.Having established the circumstances reducing guilt and punishment, the court has the right to determine the minimum sanctions within the limits provided by law, thus, the court makes the final decision only in this case. In determining circumstances that mitigate punishment, the court can only initiate a procedure for the humanization of punitive sanctions.
Circumstances that provide for the humanization of punishment for crimes are not exhausted by the ones considered above: the court in accordance with Art. 154 The Code of Punishments has the right to elect this procedure of petition when establishing non-stipulated Art. 134, 153 Regulations of extraordinary facts characterizing the identity of the offender, the motives for the commission of the crime, and others confirming the existence of exceptional circumstances.
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