Special part, Crimes against the person, Crimes against life...

Special part

Crimes against the person

Crimes against life and health

Murder

1. Killing, that is, deliberately causing death to another person, -

is punishable by deprivation of liberty for a term of six to fifteen years with a restriction of liberty for a term of up to two years, or without it (as amended by Federal Law No. 377- FZ).

2. Murder:

a) two or more persons

b) the person or his relatives in connection with the performance of this person's official activity or the performance of public debt;

c) a minor or another person known to the guilty to be in a helpless state, as well as associated with the kidnapping of a person (paragraph "in" in the edition of the Federal Law of 07/27/2009 № 215-FZ);

d) a woman who is known to the perpetrator in a state of pregnancy;

e) committed with extreme cruelty;

e) committed in a generally dangerous manner;

e 1 ) on the motive of blood feud (i.e. 1 introduced by Federal Law No. 211-FZ of July 24, 2007;

g) committed by a group of persons, by a group of persons by prior agreement or by an organized group;

h) for mercenary motives or for hire, as well as conjugated with robbery, extortion or banditry;

i) for hooligan reasons;

k) in order to conceal another crime or facilitate its commission, as well as associated with rape or violent acts of a sexual nature;

k) on motives of political, ideological, racial, national or religious hatred or enmity or on motives of hatred or enmity against any social group (i. as amended by Federal Law No. 211-FZ of July 24, 2007);

m) in order to use the organs or tissues of the victim , strong> -

n) has expired. - Federal Law of 08.12.2003 No. 162-FZ

is punishable by deprivation of liberty for a term of eight to twenty years, with restriction of liberty for a term of one to two years, or life imprisonment, or the death penalty (in red. Federal Laws of July 21, 2004. No. 73-FZ, from 27.12.2009 № 377-FZ).

1. Simple and qualified types of murder are now combined in one article, which corresponds to the structure of other articles of the Criminal Code that provide qualifying signs in parts and paragraphs of the same norm. Signs of simple killing (basic composition) are mandatory for the composition of a qualified murder, along with the aggravating circumstances provided for in Part 2 of the commented article. In addition, these signs are important for the qualification of other crimes against life. Therefore, the analysis of the composition of a simple murder can be considered as an analysis of "killing in general".

2. Part 1 of the article for the first time gives the legislative definition of murder: "intentionally causing death to another person." This definition basically corresponds to the concept of murder worked out by the theory of criminal law. There is only one significant difference. According to the earlier view of the murder, it was considered both intentional and imprudent deprivation of the life of another person. Now, in the definition of this crime, it is quite clear only about the intentional infliction of death. The notion of reckless murder of the Criminal Code does not know. The need to call the guilty murderer often served as an internal psychological and language brake in deciding whether to prosecute under Art. 106 of the Criminal Code of the RSFSR in 1960 doctors, educators and other persons who inadvertently, often in the form of inaction, caused death to a person in the course of performing their professional duties. Therefore, it should be recognized as successful the refusal of the legislator from the concept of careless killing, while at the same time increasing the responsibility for causing death through negligence due to improper performance of the person's professional duties (Part 2, Article 109 of the Criminal Code).

3. Almost all doctrinal definitions of murder include an indication of wrongfulness (illegality, criminal wrongfulness) of causing death. Article 139 of the Criminal Code of the Republic of Belarus in the definition of murder directly indicates the unlawful nature of the deprivation of life of another person. In the formulation of Part 1 of the commented article there is no such indication. However, the sign of wrongfulness in the description of the murder is necessary. It allows you to distinguish between murder and the lawful deprivation of a person's life. So, causing death with the necessary defense not only does not entail criminal liability, but can not be called murder. Similarly, other cases of lawful deprivation of life are not murder: in the execution of a sentence to the death penalty, in the course of hostilities, etc.

4. An indication in the definition of murder for causing death to another person emphasizes that causing death to oneself (suicide) is not considered a crime, and in the event of an unsuccessful attempt at suicide a person is not liable for this. Hence it follows that the expressions "complicity in suicide", "incitement to suicide" deprived of legal meaning. In such cases it is customary to talk about assisting in suicide, declension (suicide) for suicide.

5. The object of the murder is a person's life, understood not only as a physiological process, but also as a legitimate possibility of the existence of an individual in society. As a physiological process, a person's life has a beginning and an end. The beginning of life is usually considered the beginning of physiological birth. The child's life is protected by law during childbirth (Article 106 of the Criminal Code). At the same time, the infringement of the fetus in the womb of the mother does not count as murder and may lead to criminal liability for unlawful abortion or serious injury to a woman's health.

The moment of the end of life also has a legal value. This is considered to be the onset of physiological death, when due to complete cardiac arrest and the cessation of the supply of cells with oxygen, irreversible decay of the cells of the central nervous system takes place. Temporary suspension of the work of the heart (clinical death) does not mean the end of life. The removal of organs or tissues in a person in this state is unacceptable and can be qualified as murder in case of having a fault in causing death (paragraph 2 of the commented article).

6. Life as an object of crime is not subject to qualitative or quantitative evaluation. Equal protection of all people from criminal encroachments on their lives is the most important principle of criminal law. It does not matter the age, state of health of the victim or his social significance & quot ;. US criminal law does not allow the deprivation of life and a hopelessly sick person, even if there is his consent or request (euthanasia). It is the equivalence of the object that explains why causing a death to a person mistaken for another is not considered as an "error in the object" and does not affect the qualification of the deed as a completed murder. The establishment of increased responsibility for the assassination of certain categories of persons in special norms (Article 277, 295, 317 of the Criminal Code) is not connected with the special value of the life of the victim, but with the presence of another object of encroachment or additional consequences aggravating the fault.

7. From the objective side murder as a typical crime with a material composition is a unity of three elements: 1) action (inaction) aimed at depriving the life of another person; 2) death of the victim as a mandatory criminal result; 3) causal relationship between the act (inaction) of the perpetrator and the death of the victim.

More often the murder is committed by means of active actions using any instruments of crime or by direct physical influence on the victim's body. Murder by inaction (as opposed to causing death by negligence) is relatively rare. It assumes that the guilty person was responsible for preventing the onset of death. This obligation may arise from a contract, labor relations, the previous conduct of the guilty party and other actual circumstances. Judicial practice knows cases when the mother intentionally causes death to her child, leaving him without food and outside help of one in a locked apartment for a long time.

8. The obligatory condition of responsibility for murder is the existence of a causal link between the act (inaction) of the perpetrator and the death of the victim.

A direct (causal) causation is typical for killing. For example, a shot in the victim's head entails his death. It is much more difficult to establish a causal relationship when it is of an indirect, indirect nature. Causal connection with murder can be mediated: 1) the operation of automatic devices (clockwork, various retarders in the explosion); 2) the victim's expected actions, which can be either legitimate (for example, the parcel of the parcel containing an explosive device or the motor of a victim's car bombed), or unjustified (for example, deliberately leaving a bottle of poisoned vodka in the passenger compartment counting on that the hijacker will drink it); 3) the action of a minor or a mentally ill person who is not aware of the nature of the deed; 4) the action of natural forces (for example, leaving the battered person to death in the cold); 5) the actions of third parties (for example, late or unskilled medical care to the victim). To establish the causal relationship in such a situation, the determining conclusion is that the fatal outcome is a necessary consequence of the action (inaction) of the perpetrator and in the presence of mediating factors.

The division of causal links into direct and indirect ones has a practical meaning, since it indicates a different level of influence of the guilty person on the criminal result. Hence the division of the methods of crime into highly manageable and weakly managed. The degree of influence of the perpetrator on the criminal result must be borne in mind when the question of the form of guilt, the content and intent of intent, the attempt on murder, the consciousness of the tortious nature of the method of murder or its danger to the life of many people, etc., is being solved

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9. Murder is recognized over from the moment of death of the victim. It does not matter when death comes: immediately or after some time. CC in the traditions of United States legislation does not establish any "critical deadlines" the onset of death, if the perpetrator had the intention to kill. The actions of a person directly aimed at causing death to another person, if they did not lead to this result, according to circumstances beyond the control of the culprit, qualify as an attempt on murder.

10. From the subjective side , killing presupposes the existence of direct or indirect intent to cause death. Murder is committed with direct intent , not only when the infliction of death is an end in itself for the guilty. The goal may lie outside the composition of the murder. For example, the murder of an accidental eyewitness of a crime (the goal is to avoid exposure) or the murder of a cashier who refused to transfer money to a criminal (the goal is to seize money). Desire as a willful element of intent is also present in these cases, although the emotional attitude toward causing death may be negative.

With indirect intent the guilty do not direct their will to cause death, but by their actions knowingly allows its advance. Indirect intent to kill occurs, for example, in the arson of a room in which people are; when using a gag or band-aid, in order to prevent the victim from calling for help, if as a result of this death occurs; when killing strangers in the event of the use of explosive devices or other generally dangerous method of crime. The law (Article 25 of the Criminal Code) does not oppose the indirect intent to the direct, but unites them. The delineation of these types of intent becomes crucial when the fatal result is not reached. The Plenum of the US Armed Forces indicated in its resolution of 27.01.1999 No. 1 (paragraph 2): "If the murder can be committed with both direct and indirect intent, an attempt on murder is possible only with direct intent, ie, when the offense testified that the perpetrator was aware of the public danger of his actions (inaction), foresaw the possibility or inevitability of the death of another person and wished her to advance, but the fatal outcome did not occur due to circumstances beyond his control (due to active resistance of the victim, interference of other persons , timely provision of medical aid to the victim, etc.). " The absence of a direct intent to cause death excludes the qualification of the deed as an assassination attempt.

11. Motive and purpose crimes that are customarily attributed to facultative features of the subjective side, as part of the murder, acquire the role of mandatory characteristics, since the content of the murder depends on the qualification of murder under part 1 or 2 of the same art. 105. The Plenum of the US Armed Forces requires the courts to clarify the motives and purposes of the murder in each case (paragraph 1 of the Resolution of the Plenum of the US Armed Forces No. 1 of January 27, 1999). A simple murder can be committed for any reasons, except for those that the law gives a qualifying value (paragraph "e", "" - "" part 2 of the article being commented).

12. Describing the signs of a simple murder, the Plenum of the Armed Forces in paragraph 4 of the resolution of 27.01.1999 No. 1 points out the most typical motives: "for example, in a quarrel or a brawl in the absence of hooligan motives, out of jealousy, motivated by revenge, envy, hatred, hatred , arisen on the basis of personal relationships & quot ;. The motive of revenge involves a response to violence or other insult on the part of the victim, expressed in a specific action, but without signs of affect or necessary defense. This kind of manslaughter should be distinguished from murder by the motive of blood feud (see comments on the item "e1", Part 2, Article 105).

The reason for revenge can be both legitimate and illegal actions of the victim, including criminal ones. Having established that the murder was committed by the defendant in connection with the unlawful conduct of the victim, which was the reason for the crime, the court must take this circumstance into account as a mitigating one (paragraph 1 of Article 61 of the Criminal Code).

At the core of motives such as envy, hatred, dislikes usually lie a personal relationship that arose between familiar people long before the murder. "Suddenly arisen personal dislike", which is sometimes referred to, is possible in the circumstances with which certain qualified types of murder are associated (from hooligan motives, based on the motives named in the paragraph "l" of part 2 of the article being commented), and also under mitigating circumstances (Articles 107, 108 of the Criminal Code).

13. A simple murder can be recognized as causing death from compassion to a hopelessly sick or wounded person, from a misconception about his public or official duty, for fear of an expected or alleged attack in the absence of a state of necessary defense, etc. To a simple murder is also the deliberate infliction of death in a mutual fight or quarrel under the influence of emotional motives - anger, rage, fear for one's life (in the absence of signs of violent emotional excitement) or from a desire to assert its superiority (without signs of hooliganism).

14. The subject of the murder, qualified according to part 1 or 2 of the article under comment, is a sane person who has reached the age of 14 years (Article 20 of the Criminal Code). Responsibility for the privileged types of murder under art. 106 - 108 of the Criminal Code comes from 16 years. Murder committed by an official in excess of official authority, is qualified by the totality of crimes provided for in the article under article and art. 286 of the Criminal Code.

15. It is customary to call a murder committed in the presence of at least one of the aggravating circumstances (qualifying signs) listed in part 2 of the article being commented. If there are two or more qualifying signs in the actions of the perpetrator, then all of them must be indicated in the charge and conviction. However, they do not form a set of crimes, and the punishment is appointed uniform, although the presence of two or more qualifying signs is taken into account in determining the severity of the offense. To characterize certain qualifying characteristics, the recommendations contained in the resolution of the Plenum of the US Armed Forces dated January 27, 1999, No. 1, are of great importance.

For the first time, the qualifying signs of murder are located in the law (part 2 of the article being commented) on a particular system, depending on their connection with elements of the offense: relating to the object (n. "a" - "g"), to objective side (".", ",", ""), to the subjective side (n. "e", "-" - "m"). This classification is to a certain extent conditional, since any objective sign is reflected in the subjective side of the crime. However, this arrangement makes practical sense, since it facilitates the search for a norm in the process of qualifying a specific murder.

16. Among the qualifying characteristics that characterize the object of a crime, is the killing of two or more persons (paragraph a part 2 of the article being commented). Since the object of murder is human life, the crime is all the more dangerous, the more lives it has taken. Therefore, in Art. 102 of the Criminal Code of the RSFSR in 1960, among the aggravating circumstances, a corresponding feature was first envisaged. At the same time, the previous sign "killing committed by a person who had previously committed a premeditated murder" was preserved. At the same time, there arose the problem of competing these circumstances. The Criminal Code of 1996 did not eliminate this problem, since along with the " a Part 2 of the commented article in the " it was said about the murder, committed repeatedly. The Plenum VS resolved the problem of distinguishing these characteristics in the first version of paragraph 5 of the resolution of 27.01.1999 No. 1. The qualification of the murder under item "a" was made dependent on two circumstances: the simultaneity of actions and the unity of intent (intentions).

Acknowledgment of the n Part 2 of Art. 105, the text of Art. 17 of the Criminal Code led to a correction of the position of the US Armed Forces regarding the application of the item "a" Part 2 of the commented article. Paragraph 1 of clause 5 of the Resolution of the Plenum of the US Armed Forces of 27.01.1999 No. 1 reads: "In accordance with the provisions of Part 1 of Art. 17 of the Criminal Code, the killing of two or more persons committed simultaneously or at different times does not constitute a set of crimes and is subject to qualification under item "a" part 2 of Art. 105 of the Criminal Code, and if there are grounds for this also under other paragraphs of part 2 of this article, provided that no one has been convicted for any of these murders. " The condition mentioned in the last lines says that if the guilty one was already convicted for the previous crime, the " Part 2 of Art. 105 should not be used. In this case, the new murder is qualified as first-time committed, taking into account other qualifying circumstances.

The intent may be direct or indirect with respect to all victims, but a combination of direct intent to kill one person and indirect - in relation to other victims (in case of murder by application of a generally dangerous or other weakly controlled method). Murder with indirect intent in judicial practice is the deprivation of life of several people when an automatic explosive device is triggered to protect a garden plot from the intrusion of unauthorized persons. With the simultaneous killing of two or more persons, a combination of different motives is not excluded. For example, the simultaneous murder of an ex-wife on the ground of jealousy and a random eyewitness in order to hide the perfect crime. If one of the reasons is provided for in Part 2 of the commented article, this should be reflected in the qualification.

17. If, in the presence of a direct intention to kill two or more persons, only one victim perished, and the death of others did not occur for reasons beyond the control of the perpetrator, then the act is a combination of an assassination attempt, envisaged in paragraph "a" part 2 of the commented article, and the completed murder of one person, who qualifies independently for part 1 or 2 of the article to be commented (paragraph 2 of paragraph 5 of the resolution of the Plenum of the US Armed Forces of January 27, 1999 No. 1).

18. The killing of a person or his loved ones in connection with the performance by a given person of official activities or the performance of a public duty

(para. B. Part 2 of the article being commented) presents an increased danger, as it encroaches alongside a person's life also on another object, namely: social relations that provide the person with the opportunity to carry out official activities or perform public duties.

Under performance of service activities should be understood not only service in state or municipal institutions, but also any performance of labor duties in state, private and other non-state organizations and enterprises, whose activities do not contradict the current legislation. Victims can be either an official or an undisclosed person who carries out official duties.

By the performance of a public duty is understood as "the exercise by a citizen as specifically entrusted to him of duties in the public interest or the legitimate interests of individuals, and committing other socially useful actions" (paragraph 6 of the Resolution of the Plenum of the US Armed Forces No. 1 of January 27, 1999). Thus, the practice recognizes the participation in the cessation of a crime by public debt, the communication to the authorities about a committed or prepared crime or the whereabouts of a person sought in connection with the commission of offenses, testimony, etc.

It does not matter for qualification whether a murder is committed in revenge in connection with the performance of official duties or the performance of a public duty or in order to prevent such activities of the victim at a given moment or in the future. Practice does not recognize the existence of this qualifying criterion if the murder is committed out of vengeance for non-fulfillment (or improper performance) by the person of their official duties, since in these cases there is no encroachment on the said additional object, i.e. there is no impediment to the normal performance of the victim.

This rule provides for the responsibility for the murder not only of the person performing his official duties or performing public duties, but also his relatives. The degree of intimacy does not matter if by this murder the perpetrator pursues the goal of taking revenge on the person for the performance of his official or public activities or impeding this activity. The Plenum of the US Armed Forces indicated in its resolution of 27.01.1999 No. 1: "To close relatives of injured persons, along with close relatives may include other persons who are related to him, property (relatives of the spouse), as well as persons whose life, health and well-being knowingly for the guilty road to the victim due to established personal relationships. "

19. The killing of a minor or another person known to be guilty of being in a helpless state, and likewise associated with the abduction of a person (paragraph 2 of the commented article) is a qualifying feature in which two aggravating circumstances: the first characterizes the victim, and the second - a feature of the way of action.

The killing of a person who is in a helpless state is the "causing of death to a victim who is unable to protect himself by virtue of a physical or mental condition, to offer active resistance to the perpetrator" (paragraph 7 of the Resolution of the Plenum of the US Armed Forces of January 27, 1999 No. 1).

The increased danger of this type of murder is associated with a special concern for the protection of each person who is unable to protect himself or evade encroachments on his life. Such a crime is objectively more dangerous, since the achievement of a criminal result is facilitated when the victim is helpless. Such a crime is more dangerous and subjective, since the knowledge that the victim is in a helpless state at the moment of encroachment (the law does not accidentally speak about "knowl- edge"), facilitates the formation of criminal intent and can even play a provocative role. It is easier for a criminal to decide to commit a murder when he is sure that the victim is not able to repulse him.

20. Among the circumstances characterizing the helplessness of the victim, in the article under discussion it is specifically named only the murder of the minor . The Criminal Code does not establish the boundaries of the concept of "young." However, due to the legal tradition, taking into account the previous legislation, a minor is considered to be a person under 14 years of age.

21. The concept of "another person in a helpless state" is disclosed in paragraph 7 of the Plenum Decree, which along with the general definition (above) also provides an indicative list of such victims: "To persons in a helpless state, can be classified, in particular, seriously ill and elderly, young children, people suffering from mental disorders, depriving them of the ability to correctly perceive what is happening. " The wording can be referred, in particular says that this list can not be considered exhaustive, and some signs (serious illness, old age) require evaluation in a specific case, whether they indicate a person's helplessness. The victim may be helpless because of his physical or mental condition not permanently, namely at the time of the crime (fainting, deep sleep, etc.). There are situations when the victim can not protect himself and provide active resistance to the perpetrator, because because of heavy intoxication he does not perceive what is happening. Judicial practice showed fluctuations in this issue. In recent times, taking into account the tendency towards liberalization of criminal punishment, the courts avoid using the in Part 2 of the commented article in such cases, if there were no other qualifying circumstances (killing of two or more persons, special cruelty, generally dangerous method).

22. Helpless state of the victim is among the evaluation signs. Whatever the helpless state is, it must be subject to a court judgment. This applies, in particular, to the age. Neither young age nor old age in themselves does not rule out that the victim may not be helpless if he, for example, is well armed and skillfully handles arms, besides, old age unlike a minor does not have a clear legal boundary. With the same number of years lived, one person becomes helpless by virtue of age, and the other does not. Obviously, this is a matter of fact. The same can be said about a disease that is by no means always identical to a helpless state.

23. Difficult for practice was the question of the qualification of causing death to a person who was in a helpless state as a result of the actions of the perpetrator. In the sense of the law, a person must be in a helpless state before attacking him. If the victim was brought to a helpless state guilty in the process of implementing the intent to kill (by causing injuries, tying, lureing in a secluded place, etc.), then "in" Part 2 of the article should not be used.

From killing a person in a helpless state, one should distinguish situations where the victim can not defend himself for other reasons: surprise attack, a hidden or insidious way of killing life (stabbing in the back, sniper shooting from an ambush, mining), significant superiority in physical strength or number of attackers.

24. The second aggravating circumstance, first named in § in Part 2 of the commented article, "The murder associated with kidnapping" is included in the law in connection with the recent cases of kidnapping. The person captured by an armed criminal, as a rule, is in a helpless state. However, under the murder associated with kidnapping, it is necessary to understand the murder of both the kidnapped and others (for example, preventing kidnapping or attempting to release the captured person).

The actions of perpetrators who committed murder, associated with kidnapping, should be qualified in conjunction with the crime provided for in Art. 126 of the Criminal Code.

25. The increased danger of killing a woman known to the perpetrator in a state of pregnancy is due to the fact that by killing a pregnant woman, the culprit destroys the fetus as the germ of a future life . An indication of knowl- edgehip means that responsibility falls on this point if the perpetrator, at the time of the murder, knew of the pregnancy suffered by herself or from another source.

The murder of a woman whom the perpetrator mistakenly considered pregnant, should be considered an attempt on the crime provided for in paragraph " Part 2 of the commented article, proceeding from the intentionality of intent. However, considering that death is actually caused, the deed can not be considered an attempt, otherwise the guilty person would receive an unjustified privilege when imposing punishment (Part 3, Article 66 of the Criminal Code). The situation should be resolved according to the rules of error in the identity of the victim, which does not affect the qualification. In such cases, the deed is qualified under the item " Part 2 of the commented article as a completed crime.

26. To the objective side of the qualified murder according to part 2 of the commented article are the following circumstances, characterizing primarily the mode of action: e) murder committed with special cruelty; f) committed in a generally dangerous manner; g) committed by a group of persons, by a group of persons by prior agreement or by an organized group.

Murder with extreme cruelty (p. "d" part 2 of the article) is one of the most common types of killing. The Supreme Court of the United States repeatedly gave a description of the sign of special cruelty, including in its resolution of 27.01.1999 No. 1. In paragraph 8 it is said: "In the qualification of the murder under item" d "of Part 2 of Art. 105 CC must proceed from the fact that the notion of particular cruelty is associated with both the method of murder and with other circumstances testifying to the manifestation of particular cruelty. " Special cruelty as a qualifying sign is not identical with the one found in the previous legislation, the murder sign - "in a way particularly agonizing for the murdered" (clause "in" Part 1, Article 136 of the Criminal Code of the RSFSR of 1926). However, special cruelty, as a broader concept, includes this feature.

In view of the prevailing judicial practice, murder can be considered especially cruel:

a) when tortures, tortures or mockery of the victim were committed before the killing or during the committing of the murder to the victim. If torture was used to obtain any information from the victim, then causing of death is possible and with indirect intent;

b) when the murder is committed in a way that is known to the perpetrator is connected with causing the sufferer special suffering: inflicting a large number of wounds, using painfully acting poison, acid or other aggressive substances, causing death by applying fire, electric current of household tension, delayed drowning or suffocation, causing death by deprivation of food or water, etc .; c) when the murder was committed in the presence of relatives close to the victim, if the perpetrator was aware that by his actions he caused special emotional distress to those present;

d) when, in order to prolong the torment of the victim, the perpetrator prevents the assistance of the dying person.

27. Earlier, a sign of special cruelty was a mockery of a corpse, but in recent years it was abandoned because these actions are committed after the murder. However, in cases where the perpetrator, by virtue of his agitated state or other circumstances, did not realize the moment of death, mockery of the corpse appears as a mockery of the victim (dragging on the lasso, cutting off the ears, scalping) and can be qualified according to "d" Part 2 of the commented article.

28. Many errors in the qualification are due to the fact that some circumstances that may indicate a particular cruelty are given absolute importance. This is expressed, in particular, in identifying the particular cruelty with causing in the process of killing a large number of injuries. Meanwhile, a large number of injuries, as stated in the resolution of the US Army Plenum of January 27, 1999, No. 1, should characterize the method of murder as related to causing the victim special suffering. The clarification of this circumstance should be at the center of the court's attention. If it is not established that, when inflicting a lot of bodily harm to the victim, the guilty person deliberately caused him special torment and suffering, then the d Part 2 of Art. 105 CC can not be applied.

The US Supreme Court has repeatedly noted that the multiplicity of injuries inflicted on the victim is not identical with particular cruelty. "In itself, the infliction of a multitude of injuries in the absence of other evidence can not serve as a basis for the recognition of a murder committed with particular cruelty." Courts, excluding the subject qualifying attribute, often use this thesis. However, unfortunately, it is not always noted that in a particular case multiple injuries are caused. A large number of injuries can be caused not only by the particular brutality of the perpetrator, but also by his agitated state, by his inability to assess the situation, by the desire to carry out the crime that has been commenced, with insufficient effectiveness of the chosen weapon or mode of action, in case of active resistance of the victim, etc. It is necessary to assess the number of wounds in comparison with the time during which they were applied, with the moment of intent formation, with the motive of murder, with the circumstances of the case.

Another group of errors is connected with the absolutization of such a sign as committing a murder in the presence of relatives close to the victim, as well as young children. Special cruelty is manifested if those present during the murder experienced special mental suffering, and the perpetrator was conscious of this. The degree of intimacy at the same time recedes into the background. In practice, it was considered particularly cruel to kill in the presence of young children, even those not related to a circle of close relatives.

29. Murder can be qualified under the d Part 2 of the commented article, not only when the perpetrator specifically endeavored to exert special cruelty, but also when he was aware of the special torment for the victim of this method of depriving himself of life and was obviously going for it. However, it is wrong to talk about "indirect intent with respect to particular cruelty", since the Criminal Code divides intentions into species in relation to the consequence, and not the mode of action. By committing murder by way of burning alive or burrowing, drowning a living person for the purpose of inflicting special torment on the victim, the offender often leads the victim to a helpless state (by tying, injuring, etc.). In such cases, the additional qualification for the in Part 2 of Art. 105 is not required.

30. The murder committed in a generally dangerous way (paragraph 2 of the commented article) in former legislation was defined as "killing in a way dangerous to the lives of many people" (clause d Article 102 of the Criminal Code of the RSFSR). Many criteria developed by practice remain valid for the evaluation of disputable situations. So, it is necessary to take into account not only the high damaging properties of the murder weapon, but also the concrete method of its application. The Plenum of the US Armed Forces decided: "Under the generally dangerous method (paragraph" e "Part 2, Article 105 of the Criminal Code), this means of deliberately causing death is known, which is known to the perpetrator to endanger not only the injured, but at least one other person (for example, by explosion, arson, the production of shots in places of congestion, poisoning of water and food, which other people use besides the victim).

Circumstances that characterize the way of killing as generally dangerous, enter into the content of intent of the guilty. This qualifying attribute can not be imputed if the perpetrator did not realize the existence of a threat to others.

In the event of a real harm to the health of other persons, the actions of the perpetrator must be qualified in addition to the item "e" Part 2 of the commented article also on the articles of the Criminal Code, providing for liability for willful harm to health.

31. For the qualification of the murder under the item ж Part 2 of the commented article should refer to the notion of a group of individuals, a group of persons by prior agreement and an organized group (Article 35 of the Criminal Code). In n Art. 102 of the Criminal Code of the RSFSR referred only to the murder committed by a group of persons on a preliminary conspiracy. The spread of increased responsibility for the murder committed by a group of persons to all kinds of groups, including the group without prior collusion, seems justified. When committing a murder, as well as another violent crime, uniting the efforts of several persons, even in the absence of prior collusion, facilitates the achievement of a criminal result, makes it difficult for the victim to resist or evade an attack. This makes any group crime objectively more dangerous.

Group crime involves at least two co-executors (see Part 1, Article 35 of the Criminal Code). Therefore, in cases where the perpetrator of the murder was alone, the actions of the instigators and accomplices can not be qualified under the item " Part 2 of the commented article. The perpetrator of the murder can be recognized as a person who not only had the intention to commit murder, but also took a direct part in depriving the victim of life. The actions of a person who only provided assistance to the perpetrator (or perpetrators) of murder in the implementation of criminal intent, gave advice on the method, time or place of murder, or otherwise created conditions conducive to the commission of the murder, should be seen as aiding in murder. In advance, the not promised concealment of the murder (including assistance in concealing a corpse) does not constitute complicity. Such actions are qualified under Art. 316 of the Criminal Code.

Co-participation does not exclude the distribution of roles between participants. It is important to establish that with unity of intent, place and time of action, each of them performs either the completely objective side of the murder, or some of its element. Establishing a specific role for each of the accomplices in the group murder is of great importance, since according to Part 1 of Art. 34 of the Criminal Code, the responsibility of the accomplices is determined by the nature and degree of the actual participation of each of them in the commission of the crime.

Murder is recognized as committed by a group of persons when two or more persons act together with the intent aimed at taking the life of the victim, applying violence to him, and it is not necessary that the damages resulting in death are caused by each of them (for example , one suppressed the resistance of the victim, denying him the opportunity to defend himself, and the other caused him deadly injuries) (paragraph 10 of the Resolution of the Plenum of the US Armed Forces No. 1 of January 27, 1999). It follows from the foregoing that any other participation in the murder, not expressed in the use of violence, does not constitute co-ownership (for example, the transfer to the murderer at the time of the crime of a knife or rope, the illumination of the crime scene, the locking of doors, the distraction of the victim's attention).

32. To the subjective side of the crime, according to the article under review, the following aggravating circumstances characterizing the motives and purposes of the murder are relevant: on the motive of blood feud (paragraph "e1" Part 2, Article 105); for mercenary motives or for hire, as well as conjugate with robbery, extortion or banditry (clause "of" part 2 of the article being commented); from hooligan motives (clause part 2 of the article to be commented); in order to conceal another crime or facilitate its commission, as well as associated with rape or violent acts of a sexual nature (paragraph "to" part 2 of the article); on motives of political, ideological, racial, national, religious hatred or enmity or on motives of hatred or enmity concerning any social group (item "l" of part 2 of the article under review); in order to use the organs or tissues of the victim (cl. Part 2 of the article being commented).

33. Murder on the motive of blood revenge (paragraph "e1" part 2 of the article is commented) is also characterized by the subjective side. The custom of blood feud, preserved in certain regions of the United States, consists in the fact that in the case of murder or injury to health or insult of a person, the victim or his relatives must take revenge on the offender, depriving him of his life. For their part, the relatives of the new victim also consider themselves obligated to fulfill the custom of blood revenge ("blood for blood"). This process can last a long time, leading to the death of many people.

In contrast to the simple killing of revenge for murder on the motive of blood feud, the guilty person is guided not so much by a sense of personal hostility towards the victim as by the desire to observe the custom, so as not to disgrace himself and his family. Blood vengeance was previously seen as one of the most dangerous remnants of local customs (and even earlier "survivals of patrimonial life"). As a result, the conclusion was drawn that the rule of blood revenge should be limited to localities where the relevant acts are remnants of local customs (Article 236 of the RSFSR Criminal Code of 1960). In the current CC there are no such restrictions. The place of commission of a crime can be not only the territory where representatives of peoples who have mentioned traditions (customs) live compactly. Neither the place where the crime was committed nor the belonging of the subject of the crime to the indigenous or other nationality plays a decisive role. The main thing is whether the guilty custom recognizes blood feud and acts according to this custom: "In the meaning of the law, murder by motive of blood feud takes place when the guilty person who shares and recognizes this custom, deprives the victim of life, seeking to observe him" .

34. There was in the former code the qualifying sign of murder "for mercenary motives" is concretized by indicating the murder "for hire, as well as conjugated with robbery, extortion or banditry." Previously, these types of killing were also considered as a kind of self-serving murder.

In paragraph 11 of the resolution of the Plenum of the US Armed Forces dated 27.01.1999 No. 1 it is said: "As murder for hire, it is necessary to qualify the murder caused by the receipt by the perpetrator of the crime of material or other compensation. Persons who organized a murder for reward, incited to commit it or assisted in the commission of such murder, are liable for the relevant part of Art. 33 and item "Z" ч. 2 ст. 105 UK. "

Homicide is often referred to as "customized", although the law of this term does not apply, like the terms "customer", "intermediary". Customer plays the role of the organizer of the murder. But the organizer is intermediary & quot ;, i.e. a person who, in fulfillment of the received order, selects performers, develops a murder plan and carries out other organizational activities. The allocation of homicide is due to an increase in the number of such murders and their professionalization. In addition, in the psychology of hired killers, according to recent research, selfish motives are not always decisive.

Pointing to murder in robbery, as one of the types of self-serving murders, we find in the previous practice of the US Armed Forces. As for the murder associated with banditry, its allocation is of fundamental importance, since the purpose of creating a gang is not always the seizure of property (see comments on Article 209).

Given that neither robbery nor banditry is covered by the concept of murder and can not be considered a method of murder, it is necessary to qualify these crimes in conjunction with the murder. The actions of a person who committed banditry and attempted murder should be qualified in accordance with art. 209, part 3 of Art. 30 and s Part 2 of Art. 105.

35. The presence of mercenary motives is determined by the fact that the killer pursued the goal of either extracting a positive material benefit (money, other property or the right to receive it, the right to use a living space, etc.) or getting rid of material costs (repaying a debt, paying alimony, other property obligations, etc.). So, the murder of a passenger by a driver of a car with the aim of avoiding fare is considered perfect for mercenary motives.

The selfish motive is taken into account if it arose before the murder, and not after it. As the motive is qualifying, the actual extraction of material benefits is not required. If the perpetrator pursued other personal benefits of a non-material nature, this qualifying attribute can not be imputed.

36. One should not identify mercenary motives as the motive of murder with self-interest, greed as a property of the individual. Therefore, the killing of a faulty debtor by a creditor can not be qualified in accordance with cl. Part 2 of the commented article, because the guilty person does not acquire property and does not get rid of material costs. Likewise, not every murder based on a household quarrel over money or other property is a murder for mercenary motives (for example, killing a wife for refusing to give money for drinking or killing an acquaintance in a quarrel arising from a refusal to share alcohol or treat a cigarette) .

37. Murder for the purpose of capturing property, i.e. committed for mercenary motives, including murder in a robbery, should not be qualified simultaneously under clause " Part 2 of the commented article as done to facilitate another crime.

38. From murder for mercenary reasons, it is necessary to distinguish murder from revenge for encroachment on the property of the guilty person or for any other infliction of any real or alleged property damage (for example, the murder of a neighbor for using the motorbike of the guilty himself arbitrarily).

39. The actions of an accomplice or other accomplice in a self-serving murder are qualified under Art. 33 and p. Part 2 commented article, even if he himself did not seek to derive material benefits, but realized that the performer acts out of mercenary motives. This applies to the organizers of homicide for hire.

40. Murder from hooligan motives (clause part 2 of the commented article) is still among the most common. It is recognized in court practice that such is a murder committed on the grounds of obvious disrespect to society and generally accepted moral norms, when the behavior of the perpetrator is an open challenge to public order and conditioned by the desire to oppose themselves to others, to demonstrate a disdainful attitude towards them (paragraph 12 of the resolution of the Plenum of the US Armed Forces from 27.01.1999 No. 1). This is the most general characteristic of hooligan motives. In their content they represent a complex motif in which both boundless and uncontrollable selfishness and distorted ideas about the boundaries of personal freedom and the cult of brute force and the desire to "test oneself" and the outbreak of unconscious anger are intertwined. This motivation is inherent in hooliganism (see comments, to item 213). But when committing murder from hooligan motives, the scornful attitude to human life in general, regardless of the person of the victim, also joins it.

41. Typical for murder from hooligan motives is that it is usually done without an excuse or using a minor reason as an excuse for taking life (for example, killing a passerby for not giving a light, making a remark, etc.). Murder without reason is sometimes mistakenly termed "helpless." Every murder has its own motive. However, in cases when the motive can not be determined by the circumstances of the case, it is customary to classify the murder (in the absence of other qualifying signs) in part 1 of the article being commented.

42. To delineate murder from hooligan motives from mere killing in a quarrel or a fight, it is necessary to find out who was their instigator and whether the conflict was provoked by the perpetrator to use him as an excuse for murder. If the victim is the initiator of a quarrel or a fight, as well as in the event that his unlawful behavior caused the conflict, the perpetrator, as a rule, can not be responsible for the murder from hooligan motives. Actions that constitute hooliganism, which has evolved into murder, are covered by para. Part 2 of the commented article and do not require qualification under Art. 213 of the Criminal Code.

43. In to Part 2 of the commented article, as before, combines two qualifying characteristics, as they largely overlap.

The increased danger of murder for the purpose of concealing another crime or facilitating its commission is primarily due to the goal set. Therefore, for the imputation of this qualifying characteristic, it does not matter whether the goal was achieved. It does not matter also what character this other crime was, to what category it belonged. If the perpetrator goes to cause death to a person to conceal a crime of small gravity, the danger of such murder does not decrease. This also applies to rare cases of murder in order to conceal an imaginary crime, where the perpetrator erroneously believes that he faces criminal liability for actions that in reality are not a crime. By to Part 2 of the article commented also qualifies murder for the purpose of concealing or facilitating the commission of a crime the executor of which was another person.

44. Under the murder associated with rape or violent acts of a sexual nature,

should be understood:

a) murder in the process of rape (or a third person in order to facilitate the commission of rape, or with the direct or indirect intent of the victim in the process of overcoming her resistance);

b) murder to hide the perfect rape;

c) killing of revenge for resistance provided by rape (both in the case of completed rape, and in case the rape failed to complete); d) a murder committed in the same circumstances, but associated with sodomy, lesbianism or other acts of a sexual nature with the use of violence or with the threat of its use (Article 132 of the Criminal Code);

e) cases of murder associated with the subsequent satisfaction of sexual needs for the corpse (necrophilia), if the subject is found to be sane.

Because in Art. 131, 132 of the Criminal Code does not provide for the intentional infliction of death, they are applied collectively to the item " Part 2 of the commented article.

45. Murder for reasons of political, ideological, racial, ethnic or religious hatred or enmity or for reasons of hatred or enmity towards any social group (paragraph 2 of Article 105 of the Criminal Code) . Unlike the m Art. 102 of the Criminal Code of the RSFSR here refers to the murder not "on the ground", namely, based on the motives listed in the text. Therefore, for the application of the l Part 2 of the article is necessary to establish the appropriate motive. The motive may be due to hatred of the victim as a representative of a certain nationality, race or religion, or may be a manifestation of a chauvinistic worldview, xenophobia or religious intolerance, where hatred or enmity extends to all persons of other nationalities or all other faiths. The named motive can be unique, but can be combined and with other motives, for example revenge for any actions of the victim.

The increased danger of this type of murder is due to the fact that it encroaches not only on a person's life, but also on the guaranteed art. 19 of the Constitution the equality of human and civil rights and freedoms irrespective of sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, and other circumstances.

In the original version of the l This feature was combined without sufficient grounds with murder on the motive of blood feud. Now the second feature is provided separately (paragraph "e1" part 2 of the article being commented), as it was in the Criminal Code of the RSFSR in 1960.

46. Murder with the purpose of using the organs or tissues of the victim (paragraph 2 of the commented article) is a qualifying feature not previously known to the legislation in force. The introduction of this feature is justified by the fact that thanks to the success of medicine in the field of transplantation of human organs and tissues, there was a temptation to withdraw them from the life of the victim. If at the same time the guilty pursue selfish ends, then the offense must also be qualified in accordance with cl. Part 2 of the commented article.

To qualify for the m Part 2 of the commented article does not matter whether the guilty person later succeeded in using the organs or tissues of the victim. It is important that death is caused precisely for this purpose. The crime in question can be committed in order to use the organs and tissues of the victim not only for transplantation. The seizure of organs or tissues of the dead can be committed for any subsequent use, including cannibalism, animal feeding, ritual actions based on superstition, etc. The nature of the use of organs and tissues does not matter. When establishing mercenary motives, the crime is additionally qualified as murder under the item "&"; Part 2 of Art. 105 CC.

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