The concept of crime and the types of crimes
The concept of crime
1. The crime is recognized as guilty of the committed socially dangerous act prohibited by this Code under the threat of punishment.
2. It is not a crime to act (inaction), although formally and containing the signs of an act provided for by this Code, but because of insignificance it does not represent a public danger (as amended by the Federal Law of June 25, 1998 No. 92-FZ).
1. The commented article contains the definition of a crime and exhaustively describes the signs of this act: public danger, wrongfulness, guilt and punishability. All these signs must necessarily be inherent in an act recognized as a crime. >
The act is a collective term denoting an external act of socially dangerous human behavior. It includes two forms of socially dangerous behavior that differ in terms of external expression. In part 2 of the article commented, it is explained that the act can take the form of an action (ie active behavior) or inaction (ie, passive behavior, expressed in the failure to perform a specific action that the person was obliged and could commit). Both active and passive behavior, except for its external manifestation, should be conscious. The combination of these two characteristics of the act allows us to name a number of situations where the absence of one of them excludes the understanding of the act as criminal: in the absence of the possibility to act (for example, under physical coercion or in the presence of force majeure), as well as in the absence of awareness of the committed act (for example, reflex movements , the actions of the insane person or a person who has not reached the age of criminal responsibility).
The question of recognizing an act of a criminal under mental coercion, where a person has the opportunity to manage his actions (Article 40 of the Criminal Code), is resolved taking into account the provisions of Art. 39 CC on emergency.
The lawmaker only recognizes a crime as an act. The so-called detection of intent is not recognized even by the stage of commission of a crime. However, when it reaches a certain degree of public danger, the legislator raises it to the rank of crime (articles 119, 296 of the Criminal Code).
2. Public danger - a material sign of a crime that reveals its social essence. It manifests itself in the fact that a socially dangerous act causes harm or creates a threat of harm to the individual, society or the state. In accordance with the Constitution, the objects of criminal-legal protection are clearly named in Art. 2 of the Criminal Code, and the person is placed first.
The public danger is characterized by objective (the significance of the object of the crime, the nature and degree of harm, the method, time, place of commission of the crime, etc.) and subjective (forms of guilt, motives, relapse, etc.). The public danger of the act is objective. This does not contradict the fact that it is up to the legislator to classify specific acts as criminal. The act is dangerous not because someone so appreciated it, but because it is intrinsically essentially contrary to the interests of the individual, society and the state.
The circle of socially dangerous acts changes in connection with changes in the economy, politics. Some socially dangerous acts are criminalized (see, for example, Chapter 23, "Crimes against the interests of service in commercial and other organizations", Chapter 28, "Computer crimes"), others are decriminalized (for example, the acts envisaged by Art. ., 129, 173, 182, 200, 265 of the Criminal Code).
3. Illegality means the prohibition of the act by criminal law. The meaning of the sign of unlawfulness lies in the fact that the implementation of the principle of legality proclaimed in the Criminal Code depends on its observance (Article 3). In addition, it was after the legislative consolidation of the requirement of wrongfulness of the act (for the first time in the Fundamentals of the Criminal Law of the USSR and the Union Republics of December 25, 1958), the application of the criminal law by analogy was terminated (ie, the application of articles of the Criminal Code in respect of those acts that are not provided for by law ). In the Criminal Code, the provision on the prohibition of analogy is named among the principles of the criminal law (Part 2, Article 3). Illegality is connected with public danger as a form with content and is a legal expression of public danger.
Depending on what the legislator calls a public danger or wrongfulness in the definition of a crime as a sign of a crime or not, the science of criminal law refers to a material, formal or material-formal definition of a crime. In the commented article, a material and formal definition of crime is given: it contains both of these characteristics.
4. Setting the law to guilty as a sign of a crime means that the United States legislator is in the position of subjective, rather than objective imputation (Article 5 of the Criminal Code), ie. socially dangerous act is recognized as a crime only taking into account the person's mental attitude towards action (inaction) and criminal consequences in the form of intent or negligence (Article 24-27 of the Criminal Code).
Recognition of the priority of subjective imputation as opposed to objective imputation is confirmed by the presence in Art. 28 on innocent harm. The act is recognized as innocent, and therefore unassailable, if the conditions mentioned in it are proven (subjective attitude to the deed, the existence of extreme conditions or neuro-psychological overloads).
5. Impunity as a sign of a crime means that only an act prohibited by criminal law under the threat of punishment is recognized as a crime. However, in the Criminal Code there are several norms according to which a person can be released from criminal liability or punishment for the crime committed by him (Articles 75-85).
6. To characterize the public danger of crime, Part 2 of the commentary is of great importance. In accordance with this, the act (inaction) is not a crime, although formally it contains the signs of some act envisaged by the Criminal Code, but because of the insignificance it does not represent a public danger. If the act did not cause significant harm to the object protected by the criminal law, or did not pose a threat of harm, it does not have a sufficient degree of public danger due to insignificance and therefore is not considered a crime. The decision of the question of the insignificance of the action falls within the competence of the investigation and the court and is based on an analysis of the elements of the crime.
7. Material sign - a public danger - allows you to delineate the crime from other offenses (administrative, disciplinary, etc.). The distinction is made according to the degree of social danger of the act, which is determined by its character (qualitative indicator) and degree (quantitative indicator) (Article 6 and Part 3, Article 60 of the Criminal Code). Signs that characterize the public danger can relate to the consequences, the way, the form of guilt, etc.
Another criterion for distinguishing offenses is unlawfulness. The crime is violated only by the federal criminal law, which foresees more severe sanctions (up to life imprisonment) in comparison with administrative, civil and other measures, the responsibility for which is regulated by the Code of Administrative Offenses, the Civil Code, the TC TC and other regulatory legal acts.
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