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ОглавлениеPart 1 Basics of the theory of state and law Part 2. Basics of constitutional law Part 5. Basics of administrative law Part 6. Basics of criminal law Для бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуPart 6. Basics of criminal lawChapter 26. Criminal Law and Criminal Legislation26.1. Definition, Subject Matter, Method, and Specifics of Criminal LawCriminal law is a separate branch of Russian law which is a sum total of legal norms established by the highest lawmaking authority of the Russian Federation, defining the crime of a deed and its punishability, grounds for criminal liability, types of punishments, as well as common principles and conditions of their application. Criminal law, as well as other branches of law, governs social relations, but in a specific manner. It protects crucial social relations with punitive measures and recognizes as crime any infringement thereupon and prescribing criminal penalties therefor. The subject matter of criminal law is formed by protective criminal law relations, i.e. relations arising at the moment of committing crime between the actor and the state represented by its law enforcement authorities. These relations are bilateral: one party thereto is the state which has established a definite and exhaustive list of criminal acts punishable by criminal penalties, and the other party is the criminal who infringed upon state-protected relations by committing a forbidden act — crime. Some authors reasonably believe that the subject matter of criminal law is also represented with regulatory relations, i.e. relations which are governed by criminal law norms and which entitle citizens to inflict harm in certain circumstances: justifiable defense, the state of extreme necessity, etc. The state encourages its citizens to protect their rights and freedoms, other persons, the interests of the society and the state. Criminal law thereby stimulates the legality of their actions, on the one hand, and forms additional restraining effect with potential criminals on the other hand. The method of criminal law, as opposed to other branches of law, is characterised with the predominance of imperative (authoritative, providing no discretion of the actor) principles, prohibitive norms and mechanisms. The essence of the method of criminal law lies in the establishment of a ban to commit certain acts under the threat of imposing a criminal punishment. This method of legal governance is special and is not common to any other branch of Russian law. However, some specialists underline that in some cases the method of criminal law suggests granting certain rights to citizens (e.g., the right to reasoned risk, right to justifiable defense, right to non-abidance by unlawful order or instruction, etc.). Infringement of protected social relations is admissible when realising these rights, and in some cases even homicide. Article 2 of the Criminal Code of the Russian Federation defines the tasks of criminal legislation and, hence, criminal law as a branch of law. These tasks include the protection of rights and freedoms of man and citizen, public order and public security, environment, and the constitutional system of the Russian Federation against criminal encroachment, the maintenance of peace and security of the mankind, as well as prevention of crimes. Obviously, the protective function is prioritised by the lawmaker. For the fulfilment of the said tasks, the Criminal Code of the Russian Federation sets forth the grounds and the principles of criminal liability, defines the criminality of acts which pose a danger to the society and the state, and establishes the types of penalties and other measures for their commission. 26.2. Principles of Criminal LawIn governing social relations, criminal law is based on a number of principles united into a single system and interacting with one another. The following are the principles: — principle of legality. This principle means that the criminality of a deed, its punishability, and other legal consequences shall be determined by the Criminal Code of the Russian Federation and by no other acts. Application of criminal law by analogy shall not be allowed; — principle of equality of individuals before the law. Article 4 of the Criminal Code of the Russian Federation prescribes that persons who have committed crimes shall be equal before the law and shall be brought to criminal liability, regardless of their sex, race, nationality, language, origin, property or official status, and other circumstances; — principle of guilt which means that a person shall be brought to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences in respect to which his guilt has been established. Objective imputation, i.e. criminal liability for innocent injury, shall not be allowed. — principle of justice, i.e. punishment and other legal measures applicable to a person who has committed an offence shall correspond to the character and degree of the social danger of the offence, the circumstances of its commission, and the personality of the guilty party. Pursuant to section 2 Article 6 of the Criminal Code of the Russian Federation, no one may bear double criminal liability for one and the same crime; — principle of humanism. Article 7 of the Criminal Code of the Russian Federation underlines that criminal law of the Russian Federation shall ensure the safety of man, and that punishment and other legal measures applicable to a person who has committed a crime may not pursue the aim of causing physical suffering or debasement of human dignity. 26.3. Criminal Law of Russia and Its StructureCriminal law is a federal normative act adopted by the Federal Assembly of the Russian Federation, signed by the President of the Russian Federation, and published in a certain procedure, establishing the principles, grounds, and conditions of criminal liability or release therefrom and from punishment, as well as defining the list of actions deemed crimes and establishing types of punishment and other criminal legal measures for their commission. The criminal legislation of the Russian Federation consists solely of the Criminal Code of the Russian Federation. In other words, criminal legal norms may not be included into any other normative act (law or regulation), except in the Criminal Code of the Russian Federation. Criminal legislation (the Criminal Code of the Russian Federation) is the only source of criminal law. Pursuant to section 1 Article 1 of the Criminal Code of the Russian Federation, new laws providing for criminal liability are subject to inclusion into the Criminal Code of the Russian Federation. While being the sole source of criminal law, the Criminal Code of the Russian Federation is based on the Constitution of the Russian Federation and the generally recognised principles and norms of international law. The Criminal Code of the Russian Federation consists of two parts — General and Special, which unite parts, chapters, and articles containing criminal law norms. The General Part of the Criminal Code of the Russian Federation consists of six parts, sixteen chapters, and one hundred and seven articles devoted to: a) the criminal legislation and its principles; operation of law in time and space; b) the crime and its types; preliminary criminal activity, joint participation in crime; circumstances excluding the criminality of an act; c) punishment, its types, and its imposition; d) release from criminal liability and punishment; e) criminal liability of minors; f) other measures of criminal law nature. The norms of the Common part of the Criminal Code of the Russian Federation are quite specific. They do not consist of the classic elements: the hypothesis, the disposition, and the sanction. Therefore, depending on the content and the purposes of a norm established by this part of the Criminal Code of the Russian Federation, they may be divided into norms-definitions, norms-principles, norms-declarations, norms-rules, obligating and entitling norms. The Special Part of the Criminal Code of the Russian Federation contains the description of certain crimes and establishes punishments imposed onto persons who are guilty in their commission. It consists of six parts, nineteen chapters, and two hundred and fifty-five articles. Norms which are included into the Special Part of the Criminal Code of the Russian Federation, consists of two structural elements: the disposition and the sanction. The former indicates the features of a crime, and the latter — the type, duration or amount of the punishment. Hypothesis is common for all the norms of the Special Part of the Criminal Code of the Russian Federation — it is the commission of a crime described in the Criminal Code of the Russian Federation. 26.4. Operation of Criminal Law in Time and SpaceSection 1 Article 9 of the Criminal Code of the Russian Federation establishes that the criminality and punishability of an action are defined by criminal legislation which is in operation at the time of commission of that act. The time of a socially dangerous action (inaction) shall be deemed the time of committing a crime, regardless of the time of the onset of consequences. Criminal law is deemed operating if it has been adopted, signed, and published in the set procedure (for greater detail, see para. 14.3 of the textbook). By a general rule, criminal law (as any other law) has no retroactive force. This means that if the new law leads to tightening of liability, the relations which had arisen before the promulgation of that law shall be governed by the old, abrogated law. In other words, a criminal law that establishes the criminality of a deed and increases punishment or in any other way worsens the position of a person shall have no retroactive force. This epitomizes the principle according to which the criminality and punishability of a deed shall be governed by a law operating at the time of its commission. At the same time, Article 10 of the Criminal Code of the Russian Federation establishes an exception from this rule and sets forth that criminal law which removes the criminality of a deed, mitigates punishment or in any other way improves the position of a person who has committed a crime shall have retroactive force, i.e. shall be applicable to persons who have committed the respective deeds before the entry of such law into force, including persons who are serving or have served a sentence but have a criminal record. Thus, if a criminal law mitigates punishment for a deed which the person is serving, the punishment shall be shortened in a manner prescribed by the new criminal law. Operation of a criminal law is limited with a certain territory. Therefore, the primary principle of operation of criminal law in space is the principle of territoriality. Pursuant to section 1 Article 11 of the Criminal Code of the Russian Federation, a person who has committed a crime on the territory of the Russian Federation shall be brought to liability under the Criminal Code of the Russian Federation. Also, those persons shall be brought to liability under the current Russian criminal legislation who have committed crimes within the limits of the territorial sea or the airspace, the continental shelf, and in the exclusive economic zone of the Russian Federation, on a warship or a military aircraft of the Russian Federation regardless of the place of their location. A person who has committed a crime on a craft registered in a port of the Russian Federation and situated in the open sea or in the airspace outside of the confines of the Russian Federation shall be brought to criminal liability under the Criminal Code of the Russian Federation, unless otherwise stipulated by an international agreement of the Russian Federation. The issue of criminal liability of diplomatic representatives of foreign states and of other citizens enjoying immunity, should such persons commit crimes at the territory of the Russian Federation, shall be settled pursuant to norms of international law which by no means suggests their impunity. The territorial principle of operation of criminal law in space is supplemented with the principle of citizenship (section 1 Article 12 of the Criminal Code of the Russian Federation), whereby citizens of the Russian Federation and stateless persons permanently residing in the Russian Federation who have committed a crime outside of the Russian Federation shall be subject to criminal liability in accordance with the Criminal Code of the Russian Federation, unless a decision of a foreign state’s court is in place concerning this crime in respect of these persons. Foreign nationals and stateless persons who do not reside permanently in the Russian Federation and who have committed a crime outside the boundaries of the Russian Federation shall be brought to criminal liability under the Criminal Code of the Russian Federation only where these crimes run against the interests of the Russian Federation or a citizen of the Russian Federation or a stateless person permanently residing in the Russian Federation. Pursuant to section 1 Article 13 of the Criminal Code of the Russian Federation, citizens of the Russian Federation who have committed crimes in foreign states shall not be subject to extradition to these states. However, foreign nationals and stateless persons who have committed offences outside the boundaries of the Russian Federation and who are to be found at the territory of the Russian Federation may be extradited to a foreign state for bringing to criminal liability or to serve their sentences in conformity with international agreements of the Russian Federation. The existence of a respective bilateral agreement is a condition precedent for extradition of a criminal. However, the right to asylum constitutes an exception to the above rule. This right suggests prohibition to extradite persons from the Russian Federation who are prosecuted for political beliefs. Test questions and tasks: 1. What is the special character of criminal law as a branch of law? 2. Please list the main features of Russian criminal law. 3. What is the criminal law of the Russian Federation? 4. Please describe the operation of criminal law in time and in space. Chapter 27. Crime and Criminal Liability27.1. Definition of Crime, Its Features, and CategoriesSection 1 Article 14 of the Criminal Code of the Russian Federation defines a crime as a socially dangerous culpable act prohibited by the Criminal Code of the Russian Federation under a threat of punishment. Section 2 Article 14 underlines that the commission of an act (inaction), although formally containing the indicia of any act provided for by the Criminal Code of the Russian Federation, but which, due to insignificance does not represent social danger shall not be deemed a crime. In connection with the above, the following are main features of a crime: 1) social danger; 2) criminal prohibition; 3) culpability; 4) punishability. A crime is a deed (action or inaction), i.e. an external act of behavior committed under the control of consciousness and will (conscious deed). Thoughts, psychological processes, beliefs, and judgments per se do not constitute crime, however negative they are from the standpoint of law. A person’s inner world is of no interest for criminal law, although certain mental activity may definitely motivate one to commit unlawful actions. In other words, thoughts cannot be criminal, unless they are complemented with certain actions (statements, threats, incitement of religious intolerance, etc.). Social danger means that the deed inflicts or threatens to inflict damage to protected social relations. Some deeds become socially dangerous from the moment of commission of the action or inaction, regardless of the fact whether they resulted in harmful consequences (sale of liquor to minors — Article 151.1 of the Criminal Code of the Russian Federation, disclosure of adoption secret — Article 155 of the Criminal Code of the Russian Federation), others become socially dangerous in case of arising of harmful consequences (infringement of road traffic rules which resulted in careless infliction of grave harm to health of another — Article 264 of the Criminal Code of the Russian Federation). The nature of social danger of a crime is defined by social relations which are threatened, i.e. the object of the crime. Thus, encroachments upon human life differ in their social danger from crimes in the cyber security sphere. The degree of social danger is the quantification of comparative danger of deeds. It is defined by the graveness of consequences, the manner of commission of a crime, and by other circumstances (intended infliction of grave bodily harm is of higher degree of social danger than infliction of medium bodily harm; commission of a crime by an organised group or with severe cruelty is of higher degree of social danger than the same committed by a person as a result of instant intent, etc.). Criminal prohibition means that a person who has committed a crime has breached a certain criminal law ban. If a person commits an action which is not deemed a crime, it may not be considered a crime even due to a lacuna in the legislation. In other words, there is no crime where there is no indication in the Criminal Code of the Russian Federation. A person is deemed having committed a crime only as a result of breaching a norm of the Criminal Code of the Russian Federation. Breaching of a norm which is contained in any other act is deemed a misdemeanor (for greater detail, see para. 9.1 of the textbook). Внимание! Авторские права на книгу "Basics of Russian Law. Textbook" (Malko A.V., Subochev V.V., Fedorov G.V.) охраняются законодательством! |
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