Crime committed by negligence - Commentary to the...

Crime committed by negligence

1. A crime committed by negligence is an act committed by levity or negligence.

2. The crime is recognized as being committed by levity, if the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that, presumptively sought to prevent these consequences.

3. A crime is recognized as being committed by negligence, if the person did not foresee the possibility of the socially dangerous consequences of his actions (inaction), although with the necessary care and foresight it should and could foresee these consequences. 1

1. The Criminal Code provides for two kinds of careless fault: frivolity (previously this type was called self-reliance) and negligence.

2. Frivolity, as well as indirect intent, as an intellectual element includes foreseeing the possibility of socially dangerous consequences and in this sense requires a delimitation with this kind of intent.

Unlike indirect intent, when a person foresees the real possibility of causing damage precisely by his action (inaction) in a given specific situation, with criminal frivolity, the guilty person foresees only the abstract danger of the consequences of his deed, which in itself may not be socially dangerous: he understands that the action (inaction) he is committing (for example, violation of traffic rules, safety rules for the production of various works, etc.), can lead to the onset of socially dangerous but in this particular case it expects to avoid such consequences, hoping for some specific factors (their skills, experience, etc.). Such a calculation should be based on real circumstances related to the professional qualities, skills and abilities of the guilty person, the peculiarities of the technical means used by him, the adaptations, the specific circumstances of the situation, and so on. As a result, this existing calculation aimed at avoiding socially dangerous consequences turned out to be presumptuous (underestimated or overestimated), which makes it possible to determine the guilt of the subject not as an indirect intent, but as frivolity.

3. A peculiarity of negligence is that a person who caused socially dangerous consequences or did not prevent them, did not foresee these consequences in the performance of his deed, did not represent them. However, if the person had to foresee them (an objective criterion of negligence) and, moreover, could foresee and, accordingly, prevent the onset of these consequences (the subjective criterion of negligence), but did not do so, because of which socially dangerous consequences came, there are grounds to assert about the commission of a crime by negligence, and not about the absence of guilt, about innocent harm.

The duty of foreseeing the consequences of one's behavior for a particular subject is established on the basis of special requirements imposed on persons of a particular profession engaged in relevant activities or on the basis of generally known rules of foresight that must be observed by any sane person. Only when the subject who did not foresee, but had to foresee and prevent socially dangerous consequences, could, but did not do so, have grounds for confessing guilt in the form of negligence.

So, in a particular case, the court came to the correct conclusion that the crime was committed by negligence, when the perpetrator, believing about a real encroachment on him and making shots, believed that he was in a state of necessary defense, so he did not foresee the possibility of an offensive socially dangerous consequences of their actions, although with the necessary care and foresight was supposed to and could foresee these consequences and the alleged invasion of him. According to part 1 of the commented article, the crime committed by negligence is recognized as committed by negligence, therefore the court of action of R. in relation to X.A. and S. qualified under Part 2 of Art. 109 CC - causing death by negligence to two persons; The actions of R. against B. are qualified under Part 1 of Art. 111 of the Criminal Code, as it is established that in this particular case the convicted person acted with direct intent and this conclusion was motivated by the court in the verdict.

4. The Criminal Code with rare exceptions (Article 215, 217) provides for responsibility for careless behavior in cases when it entailed the relevant socially dangerous consequences, i.e. for crimes with material composition. In itself, the creation of the danger of occurrence of consequences as a result of manifested frivolity or negligence, in the absence of real harm, does not entail the responsibility of the subject, including in those cases when possible consequences have been prevented for reasons beyond his control (by other persons, etc.).

The presence in the Criminal Code of some of the so-called threat-producing offenses (Articles 340, 341, 342) does not refute but confirms the above rule, since the possibility of bringing to responsibility for the commission of these crimes through negligence is linked only with the onset of material (grave) consequences, which is defined in the privileged norms of the said articles of the Criminal Code, which in this regard provide for less strict sanctions in comparison with the same acts committed intentionally. This situation is fully consistent with Art. 15 of the Criminal Code on the types of crimes, according to which careless acts can not be classified as serious and particularly serious crimes.

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