An example of a crime event, its qualification. How to qualify a crime Theories and bases for qualifying crimes

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Now it makes sense to analyze a specific example in order to see the logic of the Criminal Code of the Russian Federation in action.

Citizen N went to hospital X about artificial termination of pregnancy (abortion) at the 11th week of pregnancy.

As a result of surgery, the pregnancy was terminated, but the uterus was perforated, which caused internal bleeding, which was not noticed by the operating doctor D, who did not show the necessary care and caution. The woman went home, and in the evening she developed severe weakness, pain in the lower abdomen, copious discharge from the genitals, nausea and vomiting. An ambulance took her to the hospital, but the woman died as a result of blood loss.

1. The object of the crime under consideration is public relations that ensure the safety of human life, in this case, the relationship between the operating doctor D of hospital X and citizen N, based on blanket dispositions contained in legislation, regulations, rules and regulations on the protection of the health of citizens.

2. The objective side of the crime is expressed in the fact that doctor D, having everything necessary (operating room, instrument, assistants and other necessary conditions), performed the operation poorly, made a gross mistake and did not track the bleeding that occurred. Doctor D was obliged in his work to be guided by the current legislation on the protection of the health of citizens, regulations, rules, knowledge of the achievements of medicine set forth in the specialized literature on this issue, and his job description, which would exclude an error.

3. The death of the victim is in a clear causal relationship with the actions of the doctor, which was confirmed by the act of pathological and anatomical autopsy: bleeding of organs.

4. The subject of the crime is special; it is a person of the medical profession who performs functions in accordance with this profession, which in our case is the doctor D.

5. To establish the degree of guilt, it is necessary to separate one form of guilt from another: intent from negligence. To do this, it is initially necessary to separate the act of producing an abortion from the act that led to the perforation, since a crime is always a specific, certain dangerous act. The doctor's actions were initially aimed at producing an abortion, and not at perforating the uterus. The act of producing an abortion is not socially dangerous if performed in a qualified manner. The act of perforating is dangerous and should be punished.

When determining intent, despite the fact that we are talking about the awareness of the public danger of actions and the doctor must be aware of this danger when performing an abortion, the harm that accompanies the act is not punishable. The doctor was unaware that he had perforated the uterus. Thus, there was no awareness of the danger (it is almost impossible to prove the opposite in this situation), which means that there was no intent to commit a crime. This is enough to remove guilt for murder under Art. 105, in particular and according to paragraph d) part 2 of this article: "murder: ... a woman, known to the perpetrator, to be in a state of pregnancy."

Then there is a need to establish the type of negligence: frivolity or negligence.

This cannot be said about the action of a doctor who did not intend to perforate the uterus at all. Moreover, he could not hope in advance for any prevention of danger, since he was not going to do anything dangerous. Thus, there is no frivolous guilt here.

Despite the fact that the doctor did not realize the indirect consequences of abortion in the form of perforation, he nevertheless had to foresee such a possibility, having special knowledge in the field of medicine in which he studied and worked in it. In addition, uterine perforation is not an isolated phenomenon and is described in the medical literature quite widely, in particular, on the issue of how to prevent it. Moreover, working as a surgical instrument in the human body, he had to assume the possibility of damage to the walls of the uterus, with which the instrument came into contact.

Thus, doctor D, with the necessary care and foresight, should have (by virtue of his official duties and knowledge) and could (he was sane, nothing prevented him) foresee the onset of the consequences of surgical intervention in the form of uterine perforation and avoid them.

Then an inattentive attitude to one's business, hindsight in relation to the results of one's actions gives us the subjective side of the crime, indicating negligence.

Since we are also talking about causing death “due to improper performance by a person of his professional duties”, then the corpus delicti is obvious and the doctor should be punished under part 2 of article 109 of the Criminal Code of the Russian Federation.

Article 109. Causing death by negligence

2. Causing death by negligence as a result of improper performance by a person of his professional duties -

shall be punishable by restraint of liberty for a term up to three years, or imprisonment for the same term, with or without deprivation of the right to hold certain positions or engage in certain activities for a term up to three years.

6. That would have been the end of it, if the doctor had noticed the bleeding, would have taken measures to save the woman, but she would have died anyway. I'll tell you from experience: the investigator would definitely stop there.

However, in this case, the doctor not only perforated the uterus, but did not notice either this or the resulting bleeding, that is, he did not provide medical assistance. This leads to the need to rethink qualifications and look at Part 2 of Art. 124 of the Criminal Code of the Russian Federation:

Article 124. Failure to provide assistance to a patient

1. Failure to provide assistance to a patient without good reason by a person who is obliged to provide it in accordance with the law or with a special rule, if this negligently entailed the infliction of moderate harm to the health of the patient, is punishable by a fine in the amount of up to forty thousand rubles, or in the amount of wages, or other income of the convicted person for a period of up to three months, or by corrective labor for a term of up to one year, or by arrest for a term of two to four months.

2. The same act, if by negligence it entailed the death of a patient or the infliction of grave harm to his health, is punishable by deprivation of liberty for a term of up to three years, with or without deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.

From the moment of perforation of the uterus, the occurrence of bleeding, citizen N is considered sick on this occasion, and bleeding is a new disease that requires immediate medical attention. Doctor D should have diagnosed this condition, observed the woman for at least a few hours (up to 24 hours), but did not.

The composition of the crime is obvious - inaction, which entailed death (failure to provide assistance to the patient).

The object of the crime is the same - the safety of human life. The objective side is the same, with the exception of the usual requirements no longer for the production of abortions, but for the diagnosis and treatment of bleeding.

The subjective side is the same.

Thus, we are dealing with a kind of double crime, which, in accordance with Art. 17 of the Criminal Code of the Russian Federation could be regarded as a set of crimes. However, the totality of crimes consists either of two or more different crimes committed by two or more independent actions (real totality), or of two or more crimes committed by one action (ideal totality).

The ideal totality, as well as the real totality of crimes united by unity of intention, should be distinguished from complex (or multicomponent) crimes, when the legislator combines various crimes into a single composition, one of which serves as a stage, method, way of committing the entire crime as a whole. In such cases, a separate qualification of the relevant crimes is not required, since, constructing a complex composition, the legislator reflected the increased danger of such crimes in the amount of the corresponding punishment.

In our case, the result of both crimes was the same - the death of a woman.

And the above analysis is necessary in order to understand the true causes of death, including the possibility of its prevention.

Term qualification comes from the Latin qualificatio - which means the definition of quality, the assessment of something. In criminal law qualification of crimes is understood as the establishment and legal consolidation of the exact correspondence between the signs of the committed act and the signs of the corpus delicti provided for by the criminal law norm. In other words, qualification means the choice of such a criminal law norm that fully covers a socially dangerous act committed by a specific person.

Crime qualification- this is a legal establishment of the conformity of the actual circumstances (signs) of a socially dangerous act with the signs of the corpus delicti provided for by the criminal law norm. It is a cognitive logical process or result, including the establishment and analysis of the actual circumstances of the deed, the understanding of the meaning of the signs of the corresponding corpus delicti, the determination of the correspondence between the actual circumstances of the real act and the signs of the corpus delicti.

The qualification of a crime means not only a logical process; it also represents a legal assessment of a socially dangerous act, the result of the appraisal and cognitive mental activity of the law enforcer. As a legal assessment of the deed, the qualification of a crime must contain an exact indication of the articles, parts, and paragraphs of the articles of both the General and the Special Parts of the Criminal Code of the Russian Federation.

The qualification process begins with the establishment of specific factual circumstances of the committed act and proceeds in the following sequence:

1. The circumstances characterizing the object and the objective side of the crime are determined.

2. The data related to the subject of the crime and the subjective side are determined.

3. A search is made for the necessary criminal law norm containing the elements of a crime. Ascertaining the correspondence between the actual circumstances of the committed socially dangerous act and the elements of the corpus delicti provided for by the criminal law means that the qualification of the crime has been carried out.

The process of qualifying a crime is carried out by the interrogating officer, investigator, prosecutor, judge at all stages of the criminal process, respectively: when a criminal case is initiated, an indictment (act) is drawn up, brought to trial, etc.

Unofficial (scientific) is qualification crimes carried out by scientists, students, any persons in private.

For proper qualification, it is necessary to comply with the conditions or prerequisites for qualifying a crime, which include:

Establishment of the actual circumstances of the committed act and their thorough analysis;

It is the basis for the correct application of criminal procedure and penal regulations, etc.

The correct qualification affects the solution of criminological and sociological issues.

The most important basis for the qualification of crimes is the criminal law, which contains an exhaustive list of acts called crimes. The criminal law must be in force and not canceled at the time of the commission of the analyzed act. Application by analogy is not allowed (Article 3 of the Criminal Code of the Russian Federation). Only the highest body of state power has the right to amend and supplement the criminal law. The judiciary does not have such powers. The gap in the law can be eliminated only by legislative means.

But the application of the criminal law also allows for interpretation, i.e., clarification and clarification of its content and meaning. In order to uniformly apply the criminal law, the guiding explanations of the Plenum of the Supreme Court of the Russian Federation on the correct qualification of crimes of a certain type are essential.

According to the current legislation, such clarifications on the application of the law arising in the course of consideration of court cases are obligatory for courts, other bodies and officials applying the law on which the clarification is given. Qualification involves a conclusion about which rule should apply in a particular case. When qualifying crimes, the act and signs of the corpus delicti recorded by the legislator in the disposition are compared.

The structure of any crime is traditionally represented by a set of 4 mandatory elements:

1) the object of the crime;

2) objective side;

3) subjective side;

4) the subject of the crime.

For qualification, certain features inherent in each element, which are divided into mandatory and optional, are also important.

So, for the objective side, the obligatory signs are the act, the harmful consequences and the causal relationship between them, the optional signs will be the time, place, method of committing the crime. Subjective side characterized by the presence of such signs as guilt, motive and purpose of committing a crime. They have specific features object of crime, which should be distinguished from the subject of a criminal attack, and the subject of a criminal attack.

Qualification but the object of encroachment.

The object of the crime is the main element of the crime. Any commission of a socially dangerous act provided for by criminal law implies a violation of someone's protected interests. For the correct application of the law, it is necessary to determine the general, generic and direct objects of the crime.

concept common object necessary for the correct perception of the general subject of regulation of criminal law.

generic object- a narrower sphere of social relations protected by criminal law from crimes represented in the Criminal Code of the Russian Federation by homogeneous groups of offenses. The Criminal Code of the Russian Federation is divided into sections and chapters, and a generic object (life and health, rights and freedoms, property, etc.) is chosen as the criterion for such a classification.

Often a socially dangerous act causes harm or threatens to cause harm to several immediate objects at once. In this regard, in the theory of criminal law, an additional immediate object. For example, robbery (Article 162 of the Criminal Code of the Russian Federation) encroaches simultaneously on the owner and on his life and health. An additional object is always indicated in the disposition of an article of the Special Part of the Criminal Code along with the main one.

They also call an optional direct object, which manifests itself, as a rule, within the framework of a qualified corpus delicti. The object of the crime is only one of the elements of the corpus delicti, therefore, its establishment in the analysis of criminal behavior cannot be considered in isolation from other elements and signs, this is only the beginning of qualification, the main purpose of which is to establish the truth.

Qualification according to the objective side of the crime- this is the establishment of an identity between the external side of a socially dangerous act. Of decisive importance in this process is the characterization of a socially dangerous criminally unlawful act that harms protected interests or threatens to cause such harm.

The act itself (action or inaction) contains essential information for the person performing the qualification. In most cases, a socially dangerous act is committed through action, but criminal inaction is also possible. If an action is an external act of a person’s active behavior, which includes not only body movements, but also a verbal, written form, then inaction is a passive form of behavior, i.e. failure to perform certain actions (for example, Article 293 of the Criminal Code of the Russian Federation - negligence of an official faces).

Harmful consequences that occur as a result of the commission of a criminal act are also the most important sign of the objective side. They act as a link between the object of the attack and the objective side and are reflected in the disposition of the article of the Special Part of the Criminal Code, which makes it possible to define this corpus delicti as material. This has a significant impact on the qualification of a crime: the absence of harmful consequences when they are legislatively fixed excludes the qualification of an act as a completed crime, and in some cases generally excludes the criminality of an act.

The following classification of harmful consequences has been adopted: tangible and intangible. TO material consequences include property damage and physical damage caused to a person. TO intangible consequences are: harm caused to the interests of the individual (moral, political, in the field of constitutional, labor and other rights and freedoms), harm caused in the field of activity of state, non-state and public organizations (for example, article 290 of the Criminal Code of the Russian Federation - taking a bribe, etc. .). In some cases, the law provides for causing additional harmful consequences.

An important condition for the correct qualification of a crime is the establishment of a causal relationship.

An official who carries out the qualification of a crime must remember a number of conditions that make it possible to clearly establish the presence of a cause of communication:

a) criminal behavior is fully consistent with the nature of the action (inaction) specified in the criminal law;

b) it precedes the result in time;

c) it is a necessary condition and contains a real possibility of its occurrence;

d) it is natural, that is, with internal necessity, without the intervention of forces outside the given development of events, it causes the onset of a criminal result.

Qualification according to the subjective side of the crime involves a thorough clarification of the mental attitude of a person to a committed socially dangerous act, harmful consequences and other important aspects of his criminal behavior. Mental attitude in criminal law is possible only in the form of intent or negligence. In addition, important components of the subjective side are motive and purpose, which, depending on the circumstances, can be both mandatory and optional features.

For qualification, the division of intent into straight And indirect. At the same time, it should be borne in mind that a crime with a formal composition can only be committed with direct intent. The intellectual moment of direct intent in this case is characterized by the fact that the person is aware of the socially dangerous nature of his act, and the volitional moment is that the person wants to commit this act prohibited by law. We are talking about such crimes as slander, insult, giving a bribe and receiving a bribe (Articles 129, 130, 290 and 291 of the Criminal Code of the Russian Federation) and a number of others.

Crimes with a material composition require a more thorough analysis of intent. Some of them can be committed with both direct and indirect intent, which in the end does not matter much for qualification.

When qualifying a crime committed through negligence, it is important to distinguish it from innocent infliction of harm (Article 28 of the Criminal Code of the Russian Federation).

Qualification by the subject of the crime. The main features of the subject of the crime are, an individual, sanity, reaching the age established by law. These signs are obligatory for all crimes and necessary for reasonable qualification. If the harm is caused by the actions of animals, minors or insane, then there is no corpus delicti.

But when the harm is caused by animals, minors or insane, which were used by a specific subject that meets all the signs of the subject of the crime, then he is recognized as the perpetrator of the crime, more precisely, his actions are regarded as a mediocre infliction of harm.

Recognition of a person as insane implies the absence of corpus delicti, but not the most socially dangerous act. In accordance with Part 1 of Art. 20 of the Criminal Code of the Russian Federation, persons who were 16 years old before committing a crime are subject to criminal liability. Part 2 Art. 20 of the Criminal Code of the Russian Federation contains an exhaustive list of crimes, responsibility for which comes from the age of 14.

In a number of offenses, the legislator singles out a special subject of the crime. In the theory of criminal law, there are various classifications of signs of a special subject, but the following are most significant for qualification: gender, age, profession, position.

Qualification of an unfinished crime. According to the criminal legislation of the Russian Federation, preliminary criminal activity is also punishable, which was not completed for reasons beyond the will of the perpetrator. It's about cooking and eating. There are a number of factors to consider when qualifying preparation. For example, preparation does not imply the fulfillment of the objective side of a specific corpus delicti.

It is only available in the following forms:

Finding, manufacturing or adaptation of means or instruments for committing a crime;

Finding accomplices and conspiracy to commit a crime; otherwise creating conditions for the commission of a crime.

It is important to single out the subjective criterion of an unfinished crime, namely, guilt in the form of direct intent and, as a rule, a certain purpose and motive of criminal behavior.

Qualification of crimes committed in complicity.

When assessing these crimes, the following important provisions should be taken into account:

Whether the committed socially dangerous act is a crime and what type of crime it belongs to;

Is a group, jointly committed crime complicity that meets the requirements of Art. 32 of the Criminal Code of the Russian Federation;

In what form was the complicity committed (Article 35 of the Criminal Code of the Russian Federation);

What role did each of the accomplices perform (Article 33 of the Criminal Code of the Russian Federation).

The qualification of a crime with complicity primarily depends on what crime is committed by the perpetrator. If all accomplices fulfill the objective side of the crime, then they are recognized as co-perpetrators and are liable under the article of the Special Part of the Criminal Code of the Russian Federation for the crime committed without reference to Art. 33 of the Criminal Code of the Russian Federation.

When qualifying crimes committed in complicity with the distribution of roles, the actions of the organizer, instigator and accomplice are qualified under the article providing for punishment for the crime committed, with reference to Art. 33 of the Criminal Code of the Russian Federation, with the exception of cases when these persons were simultaneously co-perpetrators of the crime (Article 34 of the Criminal Code of the Russian Federation).

Qualification for multiple crimes, i.e. the commission by a person of two or more crimes, implies specific rules. With this qualification, it is important to distinguish between a plurality of crimes and some single crimes that have a complex structure (we are talking about ongoing, ongoing and compound crimes).

Continued crimes Judicial practice recognizes socially dangerous acts, consisting of a number of legally identical actions, covered by a single intent of the perpetrator. An example of a continuing crime is the theft of a machine, a unit in parts, in several steps. A continuing crime is a crime that acquires the character of a process and lasts continuously in time, in fact, until the moment of suppression. Such should be recognized as an escape from places of deprivation of liberty (Article 313 of the Criminal Code of the Russian Federation).

Compound crime an act is recognized, consisting of various actions that, by the will of the legislator, form a single crime. Such acts (continued, lasting, compound) are qualified under the articles of the Special Part as a completed, single crime.

In case of cumulative crimes, each committed crime is qualified under the relevant article or part of the article of the Criminal Code of the Russian Federation. This applies more to the real aggregate, when a person performs several actions provided for by various articles or parts of an article of the Special Part of the Criminal Code of the Russian Federation. With an ideal combination, a person performs several offenses in one action, provided for by various articles of the Special Part of the Criminal Code of the Russian Federation.

Qualification of crimes in the competition of criminal law.

Under competition of criminal law in the theory of criminal law, such cases are understood when one crime is simultaneously covered by various articles of the Special Part of the Criminal Code of the Russian Federation. At the same time (unlike the totality of crimes), the application of several competing norms is unacceptable.

To qualify a crime in competition, only one of the competing criminal law norms is used, the one that most accurately reflects the social and legal nature of the committed socially dangerous act. For the qualification of crimes, the competition of the general and special norms and the competition of special norms are important. According to part 3 of Art. 17 of the Criminal Code of the Russian Federation: "If a crime is provided for by general and special norms, there is no totality of crimes, then criminal liability occurs according to a special norm."

Thus, liability for libel is provided for under Art. 129 of the Russian Federation (general rule), but slander against a judge, juror, etc. is qualified under Art. 298 of the Criminal Code of the Russian Federation (special rule). In the competition of special criminal law norms, priority should be given to the norm providing for a milder liability. This most often applies to homogeneous crimes with aggravating and mitigating circumstances.

The question arises of how to qualify the actions of the perpetrator who committed the murder under the conditions of a factual error: he believed that he was killing a pregnant woman, although in fact she was not. The option proposed by some scholars: part 1 of article 105 and article 30 + paragraph “d” of part 2 of article 105 of the Criminal Code of the Russian Federation is highly doubtful, because there is a murder of only one person, and judging by the qualifications, it can be assumed that two crimes were committed. It is also impossible to agree with the second point of view: qualification only under paragraph “d” of part 2 of article 105 of the Criminal Code of the Russian Federation, because, although the criminal result - the death of a woman - is achieved, however, the consequences indicated in paragraph “d” part 2 of article 105 of the Criminal Code of the Russian Federation still did not come. The most correct opinion on this matter was expressed by A.A. Piontkovsky, who, considering the question of the types of errors in criminal law, noted: “A factual error related to objective circumstances qualifying a given crime may consist either in an erroneous assumption about their absence, or in an erroneous assumption about the presence of these circumstances ... Committing a crime under an erroneous assumption of a person about the presence of circumstances qualifying a crime should be considered as an attempt to commit a qualified crime. It seems that this statement is quite applicable when qualifying the murder of a woman, presumably for the perpetrator, who is in a state of pregnancy, but in fact she is not pregnant. There is no error in the object here - a person is deprived of life, the subject fully fulfills the objective side of the crime, but the desired criminal result does not occur: a woman who is not pregnant is killed. Consequently, the qualification must be in accordance with Article 30 and Clause “d”, Part 2, Article 105 of the Criminal Code of the Russian Federation.

The issue of qualifying the actions of the perpetrator is solved somewhat differently when there is a mistake in the identity of the victim. In cases where the subject makes an attempt on the life of another person in the presence of circumstances qualifying the murder (in particular, pregnancy), and in fact, due to a mistake in personality, kills an unauthorized person, qualification must be carried out under two parts of Article 105 of the Criminal Code of the Russian Federation. In relation to this situation, this is Art. 30 + Clause “d”, Part 2 of Art. 105 and Part 1 of Art. 105 of the Criminal Code of the Russian Federation. The qualification of such actions only under part 1 of article 105 of the Criminal Code of the Russian Federation would mean an underestimation of the subject's actions from the point of view of their public danger. Here the subject performed all the necessary actions for the onset of criminal consequences, but they did not occur for reasons beyond his control - errors in the personality of the victim.

4.4. Murder committed in a generally dangerous way

In order to qualify a premeditated murder as committed by a method dangerous to the lives of many people, it is necessary to establish whether the perpetrator, in carrying out the intent to kill a certain person, was aware that he uses such a method of causing death that is dangerous to the life of not only one person. Consequently, in order to qualify a murder under paragraph “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation, it is necessary for the guilty person to realize that the method he has chosen creates a real danger to the lives of several people. At the same time, a method that creates a danger to the life of at least two people is recognized as generally dangerous. In judicial practice, such methods as, for example, explosion, arson, and collapse are traditionally recognized as generally dangerous. But at the same time, it is impossible to assess the danger in the abstract, it must be compared with the specific situation in which the crime is committed. Thus, the use of an explosive device in a deserted place or setting fire to a house in which one person is known to be present cannot automatically be considered a generally dangerous method.

If, as a result of such a crime, death is caused to one person, and harm to health to another, then the qualification of the actions of the perpetrator should be based on the combination of paragraph “e” of part 2 of article 105 with the article of the Criminal Code, which provides for liability for causing harm to health, because . the norm assumes only a generally dangerous way, causing harm to the life and health of other persons is only assumed, but not necessary. It seems that in this case, the danger of harm is necessary only to the person, and not to other legally protected interests (for example, property). If harm as a result of a murder is not caused to a person, but, for example, to property, then qualification is necessary in the aggregate of part 1 of article 105 and article 167 of the Criminal Code of the Russian Federation.

The correct qualification under clause “e” of Part 2 of Article 105 of the Criminal Code of the Russian Federation depends on clarifying the intent of the perpetrator both in relation to the victim and other persons for whose life the chosen method turned out to be dangerous. Most often, the perpetrator in such a murder aims to kill a certain person, and he is indifferent to the fact that other people may die as a result, i.e. in relation to the death of the victim, he acts with direct intent, and in relation to the possible death of another person, with indirect intent. However, the situation is not ruled out when the perpetrator acts with indirect intent, not having the goal of killing someone. So, a person who wants to “joke” and throws a grenade into the crowd for this does not want to kill someone, however, if at least one person dies, then in this case there is a murder in a generally dangerous way. Similarly, the actions of a person who wants to kill two people in a crowd by throwing a grenade should be regarded. Based on this, we can conclude that in such a murder, the intent of the perpetrator in relation to the death of one is direct, and in relation to the death of other persons, either direct or indirect.

In judicial practice, the question arises of how to qualify the actions of a person who shoots with the aim of killing someone in the direction of several people from a gun loaded with shot or buckshot. N.K. Semerneva, in order to resolve the issue of the possibility of qualifying this murder under clause “e” part 2 of article 105 of the Criminal Code of the Russian Federation, proposes in such situations to conduct a ballistic examination, which would allow us to answer the question about the area of scattering of shot or buckshot when fired from a certain distance, and find out the attitude of the perpetrator to his chosen method of murder. So, with an aimed shot at close range, there is no danger to others, because. shot or buckshot is not scattered very much, but at the same time, the danger to the lives of others will be real if the same shot is fired from a distance of 30 - 40 meters. In my opinion, this is absolutely true, because. a person shooting at a crowd with a gun loaded with shot or buckshot cannot fail to understand that the danger of such a shot to others increases as the distance of the shot increases.

The issue of qualification of actions should be resolved very carefully when a vehicle acts as a murder weapon, which in itself is a mechanism, the operation of which in itself creates an increased danger. In order to distinguish between murder, the instrument of which is a vehicle, and the crime provided for by Article 264 of the Criminal Code of the Russian Federation (which, moreover, in comparison with murder, is only a crime of medium gravity), it is important to analyze the subjective side of the perpetrator. If the attitude towards the consequences (death of a person) is careless, then the qualification should be according to Article 264 of the Criminal Code of the Russian Federation, but if there was intent to kill someone, then under certain circumstances (for example, hitting a person in a crowd), such actions should be qualified according to p. "e" part 2 of article 105 of the Criminal Code of the Russian Federation.

The rights of patients on paper and in life Saversky Alexander Vladimirovich

3. An example of the qualification of a crime

Now it makes sense to analyze a specific example in order to see the logic of the Criminal Code of the Russian Federation in action.

Example

Citizen N went to hospital X about artificial termination of pregnancy (abortion) at the 11th week of pregnancy. As a result of surgery, the pregnancy was terminated, but the uterus was perforated, which caused internal bleeding, which was not noticed by the operating doctor D, who did not show the necessary care and caution. The woman went home, and in the evening she developed severe weakness, pain in the lower abdomen, copious discharge from the genitals, nausea and vomiting. An ambulance took her to the hospital, but the woman died as a result of blood loss.

3. The death of the victim is in a clear causal relationship with the actions of the doctor, which was confirmed by the act of pathological and anatomical autopsy: bleeding of organs.

4. The subject of the crime is special; it is a person of the medical profession who performs functions in accordance with this profession, which in our case is the doctor D.

Then there is a need to establish the type of negligence: frivolity or negligence.

Since, with frivolity, a person is aware that as a result of his actions danger may arise, but hopes to avoid or prevent it, then we are always talking about some kind of deliberate action, the dangerous consequences of which can be avoided. This cannot be said about the action of a doctor who did not intend to perforate the uterus at all. Moreover, he could not hope in advance for any prevention of danger, since he was not going to do anything dangerous. Thus, there is no frivolous guilt here.

Then an inattentive attitude to one's business, hindsight in relation to the results of one's actions gives us the subjective side of the crime, indicating negligence.

Article 109. Causing death by negligence

2. Causing death by negligence as a result of improper performance by a person of his professional duties -

6. That would have been the end of it, if the doctor had noticed the bleeding, would have taken measures to save the woman, but she would still have died. I'll tell you from experience: the investigator would definitely stop there.

Article 124. Failure to help the patient

The composition of the crime is obvious - inaction, which entailed death (failure to provide assistance to the patient).

The subjective side is the same.

The ideal totality, as well as the real totality of crimes, united by unity of intent, should be distinguished from complex (or multi-component) crimes, when the legislator combines various crimes into a single composition, one of which serves as a stage, method, way of committing the entire crime as a whole. In such cases, a separate qualification of the relevant crimes is not required, since, constructing a complex composition, the legislator reflected the increased danger of such crimes in the amount of the corresponding punishment.

In our case, the result of both crimes was the same - the death of a woman.

And the above analysis is necessary in order to understand the true causes of death, including the possibility of its prevention.

This text is an introductory piece.

§ 4. The corpus delicti as an instrument of qualification From the definition of qualification and all subsequent presentation it is obvious that the qualification is inseparably linked with the concept of corpus delicti and its features. Dual service role of corpus delicti

Chapter 2 Composition of a crime and its functions in qualification

§ 1. Criminal law and corpus delicti as the basis for the qualification of crimes Determination of the qualification of crimes as the establishment and legal consolidation of the identity of legally significant signs of a really committed act with the signs of corpus delicti

Chapter 5 Changing the qualification of a crime

Chapter II Composition of a Crime as a Criminal Law Basis for Qualification

13. The concept of the subject of the crime and its relationship with the object of the crime. Multi-object crimes The subject of the crime is the objects of the material world, which are directly affected by the offender, carrying out an encroachment on the object of the crime, and

52. The concept, types and significance of the qualification of crimes. The process of qualification of crimes The qualification of a crime is the establishment and legal consolidation of the identity between the signs of the committed act and the signs of the corpus delicti. Qualification

Example No. 1 On February 15, 1995, the tax authority received information from a notary that the inheritance had been opened since September 10, 1994 by the heir of the first stage. The value of the inherited property was 25,000,000 rubles. Minimum monthly wage on the opening day of the inheritance

Example No. 2 On December 15, 1994, the tax authority received information from a notary that the inheritance was opened from June 1, 1994 by the heir of the first stage, cohabiting with the testator. The total value of the inherited property was 40,000,000 rubles. (inherited property

Example No. 1 If during 1994 an individual from the same donor, who is not related to the donee, received three gifts under notarized donation agreements (in January - in the amount of 1,000,000 rubles, in April - in the amount of RUB 5,000,000 and

Example No. 2 Citizen N. in January 1995 received as a gift an apartment worth 10,000,000 rubles, which belonged on the basis of common joint ownership of his mother and her spouse, who is not the father of the donee. The minimum monthly wage on the date of execution of the contract

Example No. 3 An individual in January 1995 donated an apartment worth 35,000,000 rubles. two individuals (spouses) in common joint ownership, consisting of a donor in various family relationships (daughter and son-in-law). The minimum monthly wage for the day

Example No. 1 Payment notice in the amount of 55 thousand rubles. for the payment of tax on property passing by inheritance or donation, handed over to the payer on March 4, 1995, the tax must be paid no later than June 3, 1995, i.e. the last day of payment is June 3. Citizen in

Example No. 2 Payment notice in the amount of 50 thousand rubles. for the payment of tax on property passing by inheritance or donation, handed over to the payer on March 4, 1995, the tax must be paid no later than June 3, 1995, i.e. the last day of payment is June 3. By written

3.47. Decree of the Plenum of the Supreme Court of the USSR "On the qualification of violations of the rules for driving or operating vehicles by military personnel and other persons who are criminally liable under the Law on criminal liability for military crimes" dated March 30, 1973

An example of an accident with a fatal outcome In June 2006, at about 5:30 p.m., driver V., driving a GAZ-322131 car belonging to Sh., was moving in the city […] along the street. Komarov in the direction from the street. Starting to st. Queen, while in violation of the requirements of clauses 1.3, 1.5, 9.9, 10.1 of the SDA,

The theory of criminal law has recently established what is the concept of corpus delicti. In practice, this concept has been used for a long time, but there was no exact content and definition.

The term "crime"

To understand what the composition is, what is the basis and how a crime is qualified, it is necessary to understand the concept itself.

A crime is an action or inaction (act) that is socially dangerous. In simple words, the harm from this event is expressed in damage to interests that fall under the jurisdiction of criminal law.

For example, theft harms the property rights that are accepted in society. That act, which formally falls under but does not contain signs of public danger, will not be a crime. For example, inflicting bodily harm on a maniac in order to protect children from him. If considered formally, the action is subject to punishment, but it does not have a public danger, which means that there is no question of a crime.

concept

The system of subjective and objective elements (signs) of acts (actions or inactions) provided for both in the hypothesis and in the disposition of norms, and characterizing a certain dangerous act as criminal, is called the corpus delicti.

Consists of 4 components subsystems:

the object of the offense;
the objective side of the offense;
the subjective side of the crime;
the subject of the crime.

The significance of the composition lies in the fact that it serves as the basis for the appointment of criminal liability. When any element of the composition is absent, criminal liability does not arise. For example, the act is committed by a person recognized as insane. In such a situation, there is no subject of the crime. This means that a sentence cannot be passed, since such a person is not prosecuted.

Composition of a crime in the Criminal Code

The composition and qualification of crimes in the criminal law are not disclosed. This term is used by investigative and judicial practice and the theory of criminal law.

It is customary to understand the composition as a combination of objective and subjective signs, which, according to the law, characterize a certain socially dangerous act as a crime.

The corpus delicti is a legislative image of a specific criminal act, which is described in specific articles of the Special Section of the Criminal Code.

Qualification of crimes

Translated from Latin, "qualification" - quality. One speaks of qualification in relation to crimes in two senses:

as a certain logical process or activity;
as a result, where the activity received a final assessment of a dangerous type of behavior and a concept is assigned to the act in a certain document.

In order to correctly qualify the crime, and then make the right decision regarding punishment, it is necessary to figure out how to divide the crimes.

Allocate logical, philosophical, legal, psychological basis of qualification.

In the field of criminal law, qualification is understood as establishing the correspondence or equality of the signs that a committed dangerous act has with the signs that are provided for by law.

The conclusion about whether there are such signs and whether they correspond to those described is made on the basis of a comparison of the act with existing norms. The comparison is made only on the basis of generally recognized criminal law measures, other signs are not taken into account.

The very concept of a crime is influenced by the qualification of the crime.

For example, for the offense of illegal hunting, the attribute "crime scene" is considered mandatory. The decision made on the issue will depend on it.

Qualification is an assessment of the criminal law nature of those factual circumstances in the case that took place. Correctly established qualifications depend on the correct establishment of circumstances.

A crime is qualified in the course of a preliminary investigation (inquiry, preliminary investigation), as well as a trial, and then a verdict. Also, the assignment of qualifications is included in the tasks of supervisory and cassation proceedings in criminal cases. Conclusions that the act contains a corpus delicti that complies with the established criminal law standards are reflected in the documentation:

decision to initiate a case or in disagreement with the initiation;
a decision that it is necessary to involve a person as an accused;
application of preventive measures;
guilty verdict;
indictment.

In these documents, the names of all articles under which the crime falls are recorded in detail and accurately.

The value of qualification

Determination of the corpus delicti and qualification of crimes is one of the most crucial moments in the work of law enforcement agencies. The law enforcement officer is vested with the broadest powers in matters of decision-making on the qualification of a crime.

The same moment determines the full responsibility for the decision taken by the law enforcer in the case.

Problems of qualification of crimes by composition still exist, despite numerous attempts to make a clear classification. Establishment in the act of signs of a specific corpus delicti can be achieved only by qualifying the crime. Here it acts as a justification from the point of view of the law, according to which a person is prosecuted, coercive measures are applied, charges are brought, punishments are determined or a punishment is executed.

As a result, qualification is not only a reflection of protective criminal law relations, but also reflects related penitentiary and criminal procedural relations.

Correct qualification is the key to making the right verdict.

Types of qualification

The composition of the crime and the qualification of crimes during its definition imply the division of the qualification process into various subspecies. The corpus delicti is the basis for qualifying the crime.

Qualification types:

Official. Such qualification is given by the investigator, interrogator or court at all stages of criminal proceedings.
Unofficial. It is given by students, scientists, other persons in private.

Qualification process

During the qualification of crimes, several actions are performed:

clarification is carried out whether the given act is criminal (compliance with article of the Criminal Code of the Russian Federation No. 14);
it turns out who is the object (and in some cases - the subject) of the criminal encroachment;
an analysis of the signs that are included in the objective as well as the subjective side is carried out;
the legal requirements that apply to the subject of the crime are determined.

The correct qualification of a crime makes it possible to clarify the question of the presence or absence of criminal liability, and also allows the court to determine a fair punishment for the act committed.

Estimated signs in qualification

The qualification of elements of crimes with evaluative features is an important stage in the analysis of the act.

Evaluative features are variable. Their content significantly depends on what kind of legal consciousness is observed in a lawyer who applies the law. These signs are closest to the constantly changing situation that the investigating authorities, the prosecutor's office and the court have to assess. And with a certain degree of conventionality, they are usually called "evaluative" signs.

An example of a typical evaluative feature would be an indication of "significant harm" that is caused by the abuse of power, public or state interests, as well as interests that are protected by law, public interests and the interests and rights of citizens.

Substantial harm

Since the very concept of “significant harm” is not disclosed in the Criminal Code, the final decision on whether the crime itself is significant or not is taken only by the court.

The composition of the crime and the qualification of crimes is one of the most important stages in the entire judicial proceeding. At the same time, evaluative concepts are a reflection of the relationship between objects or phenomena, and also characterize the result of comparing an object with a certain sample (standard or standard).

It should be noted that the concept of a standard as applied to crimes is considered very specific.

Significance of corpus delicti for qualification

First of all, it is to be the basis for criminal liability. This means that a person whose act contains corpus delicti is subject to criminal liability by the prosecutor's office, the court and the investigating authorities, and the person himself is not obliged to bear such responsibility.

The second function that corpus delicti has is to help qualify. The value of the corpus delicti for the qualification of crimes is to establish the necessary compliance, identity, identification of the deed with the signs of the corpus delicti, which are provided for in the legal norm.

A well-defined corpus delicti has a social and criminal-legal significance.

The value of the corpus delicti for the qualification of crimes of a general social nature lies in the expression of a negative assessment of society by the totality of signs that form a certain corpus delicti. Also, the state can express its attitude to this issue.

The criminal law meaning is expressed in a number of different ways.

Qualifying errors

The qualification of an act according to the composition of crimes, unfortunately, may have errors.

Qualification errors are incorrectly established absence or presence of signs of a crime, as well as compliance with its description in parts of the Criminal Code of the Russian Federation (definition according to Kuznetsova N.F.). Such errors are of a criminal law nature, in contrast to criminal procedural ones. The main sources of such errors are shortcomings in law enforcement and shortcomings in legislation.

Qualifying errors are summarized in three groups:

The presence of corpus delicti where it exists is not recognized.
It is recognized that the corpus delicti exists where it is absent.
The norm of the Criminal Code is chosen incorrectly for the implementation of qualification.

Qualification of related crimes

The qualification of related elements of crimes has certain difficulties.

Adjacent formulations are related in the nature of the danger they pose to society, and also differ in one or more common characteristics. There are at least 150 related offenses in the Criminal Code.

To qualify such crimes, it is important to highlight the elements that will distinguish them. For example, in the case of theft of someone else's property, the form of appropriation of someone else's will serve as dividing signs. If theft is a secret theft, robbery is open, and robbery is violent.

Related crimes of an official nature are different in object - the interests of service in different organizations, against the interests of public service, justice, military service.

The qualification of crimes on the basis of corpus delicti in related cases, as well as the determination of the relatedness of actions, make it possible to define such a concept as the repeated conviction and crime. This means that there can be several objects. Criminologically, such a decision is quite justified.

conclusions

The composition of the crime, the types of compositions, the qualification of the crime in the total aggregate form the only basis for determining criminal liability. They serve as the correct legal qualification to which a criminal act is subjected, and are also the basis for the court to determine the amount of punishment, its type and severity, and also be able to establish another measure of criminal liability.

An accurate and correct definition of the elements of a crime is one of the guarantees that the rights and freedoms of a person and a citizen will be protected, law and order will be respected and strengthened, and the state will continue to have signs of a democratic and legal one.