3.2.6. The circumstances of partial imputation
List of circumstances that "reduce blame" The defendant for committing an offense and foreseen by the Charter on punishments was also not exhaustive: the magistrate, guided by Art. 13 of the Charter, was entitled to identify and other similar circumstances that are not directly provided by law.
Among the circumstances that "reduce guilt" The Charter of Punishment and the Penal Code stipulated only one unparalleled in the current law: "dementia and extreme ignorance" (Clause 1, Article 13 of the Charter, clause 4 of Article 134 of the Code).
Dementia is characterized by a weakening or complete loss of intellectual abilities due to the unfavorable development of mental illness - this is the so-called acquired dementia - dementia - (from Latin dementia - insanity). Increased negative manifestations of mental illness (seizures of epilepsy, rare remissions in the case of schizophrenia) indicate its transition to a malignant irreversible phase of dementia. These symptoms of acquired dementia (dementia secundaria), defined by psychiatrists in the late nineteenth century, basically coincide with the concepts used by modern science.
3.2.7. Circumstances aggravating responsibility for offenses
The Charter on punishments provided for five circumstances that aggravate the guilt of the defendant (Article 129 of the Penal Code defined 10 such circumstances).
"Deliberation in the actions of the perpetrator" (Clause 1, Article 14 of the Charter) testified to the presence of guilt in the form of direct intent - the subject was aware of the wrongfulness of his act and wished or consciously allowed the onset of socially dangerous consequences.
The class affiliation of the defendant or the presence of intellectual abilities were also considered by the Charter of Penalties as an aggravating circumstance. In this case, subjective criteria were taken into account - education defendant and "high position in society". The presence of class privileges often determined the social status of a person in the hierarchy of the civil service, and the harm caused by the subject endowed with powers of authority is not comparable with socially dangerous consequences in the acts of other persons. In accordance with paragraph 3 of Art. 129 The Penal Code, the existence of class privileges and intellectual qualities ("state, rank and degree of education") aggravated the guilt and responsibility for committing crimes.
The circumstances aggravating the liability included also "stubborn denial and in particular the instigation of suspicion against the innocent" (clause 3 of Article 14 of the Charter, clause 10 of Article 129 of the Code), i.e. unwillingness to cooperate with law enforcement during pre-trial proceedings or in court, confirmed the person's belonging to asocial elements and further aggravated the responsibility for giving knowingly false testimony against persons not involved in the offense.
Relapse of offenses (Article 141 of the Charter, Article 131 of the Code) The Charter of punishment was divided into two varieties:
o committing the same or uniform misdemeanor for serving a sentence for previous misdemeanor or crime;
o Repeated commission of an offense by a person who has been released from punishment for committing serious misconduct or crimes as a result of amnesty and pardon. In this case, the criterion for relapse was the appointment of the most severe punishment - imprisonment or other, not so burdensome penalties in the form of restraint of liberty.
The organization of the offense and a particularly active role in its commission (Article 15 of the Charter) also related to aggravating circumstances. When committing a group violation (with two or more participants), the aggravating signs could only be established in the actions of the organizers or the persons who inflicted the most significant physical (corporal) or moral damage or property damage, the other participants were punished on a general basis.
The concept of complicity in the commission of an offense was not determined by the Charter of punishments, the identification of signs of complicity was carried out in accordance with Art. 11-15 The Penal Code. At the same time, it was taken into account whether a criminal act was committed with or without a prior conspiracy. In the latter case, the most serious harm was caused by the actions of the main culprits, this group included: the organizers of the crime, i.e. persons who "disposed of or controlled the actions of others", and persons who committed the crime first. Thus, not only the ability to direct and direct the actions of accomplices was taken into account, the temporal aspect of the offense, the distribution of the functions of passive and active complicity were also taken into account. Those who render direct assistance to the main culprits (providing technical assistance, eliminating objective obstacles in their actions, etc.), treated the participants.
If there were signs of a preliminary collusion of a group of persons, the perpetrators of the crime were identified, primarily the organizers of the crime or attempted assassination; accomplices - individuals who provide active assistance to instigators; instigators ("conspirators") - persons who render only passive assistance in the commission of a crime but do not directly participate in it, persons, by means of "persuasion, bribery and promises of benefits, coercion and threats inclined to the crime of others"; accomplices - persons providing technical assistance to other accomplices.
In determining the degree of guilt of accomplices in a misdemeanor (Article 15 of the Charter on punishments), subjective factors were taken into account: the violator's ability to organize the commission of an offense by means of moral or physical coercion, to distribute the functions of passive and active accomplices, as well as objective factors, primarily caused by the actions of accomplices physical and moral damage and property damage.
Qualification of complicity in accordance with the Penal Code was also necessary because the Charter of Penalties dealt with misdemeanors committed by prior conspiracy, as a circumstance aggravating the punishment: "... persons who committed themselves (misconduct. Author) or talked to others, are punished more severely than their accomplices (Article 15 of the Charter).
The views on complicity as a community of criminals, united by a desire to carry out criminal intent, were shared by NS Tagantsev: "Only cases of confluence of criminals where there is a joint responsibility of all for each and everyone for all are attributed to complicity: only Under this condition, the doctrine of complicity gets the value of an independent institution. "
A distinctive feature of the Charter of Punishments is the existence of the basic concepts of the objective side of the offense, defined in accordance with the Penal Code, among which is the concept of "attempted misconduct" (Article 17 of the Charter). In accordance with Art. 9 of the Penal Code, "attempted crime is any action by which the evil intention begins or continues to be carried out." As is clear from the above definition, United States law did not limit preparations for a crime from attempt; in accordance with Article 8 of the Penal Code, "preparation or acquisition of funds for the commission of a crime", i.e. the initial actions to implement the intention. Legislation also did not identify the objective features of the assassination, which are acts aimed at the commission of a crime that were not carried out due to circumstances beyond the control of the individual. The interpretation of laws in the decisions of the cassation department of the Governing Senate should be considered more precise: "An attempt, unlike a committed crime, can be recognized only such actions of the defendant, on which he was stopped by his own will or circumstances independent of him, before his criminal intent was brought in execution & quot ;. In addition to the objective criterion of assassination, the subjective, conditioned by strong-willed actions of the person is also determined. Thus, the voluntary refusal of the crime was also considered an attempt, but the person was only criminally liable in cases when the acts committed by him contained signs of a crime (Article 113 of the Penal Code). When qualifying minor misconduct voluntary refusal of their commission was not considered as an offense.
In accordance with Art. 17 of the Charter of Punishments "an attempt on a misdemeanor stopped by the defendant's own will is not punishable", but only in cases where the actual acts did not contain any signs of misconduct.
Justifying voluntary refusal of crime as a kind of assassination attempt, NS Tagantsev nevertheless delimited him from an attempt, stopped due to objective circumstances.
The use of punishments provided by the Charter on punishments was not always due to the presence of a misdemeanor: offenses that infringe on the intangible and property interests of individuals (theft, fraud, misappropriation of others' property, etc.) were punished by the complaint of the victims.
These offenses did not result in punishment when the offender was reconciled with the victim or when the infringer was compensated for property damage, regardless of his motives in committing certain misconduct that encroached on property interests.
The application of punishment also depended on the length of the interim period between the commission of the misconduct and the commencement of the proceedings. In the event that the specified period exceeded six months, the punishment could not be imposed. When committing some misconduct, encroaching on property interests, this period increased to a year (forest destruction), and in the case of serious property misdemeanors (theft, fraud and misappropriation of others' property) - up to two years. In rare cases, when committing misdemeanors, which represent a minor social danger, this period could be reduced to one month (in total, the Charter punished five such offenses).
Property damage caused by misdemeanor, was subject to reimbursement, and physical (bodily) and moral damage - monetary compensation along with punishment.
In case of insolvency of the offender, first of all, the private interests of the victims were to be satisfied, and the sanctions envisaged by law were imposed on the remaining part of the property.
The payment of a monetary penalty, replaced because of the insolvency of the offender by punishment in the form of restraint of liberty, meant the early release of the offender.
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