Why is the sign of social harmfulness highlighted. Differences between a crime and administrative offenses

Kulikov E.A. - Social danger of an act as the main sign of an offense // Legal research. - 2016. - No. 1. - P. 18 - 48. DOI: 10.7256 / 2409-7136.2016.1.17662 URL: https://nbpublish.com/library_read_article.php?id=17662

Public danger of an act as the main sign of an offense

10.7256/2409-7136.2016.1.17662

Abstract.

The article is devoted to social danger as the most important attribute of a deed, which helps qualify it as a misdeed. The author analyzes legal definitions, existing in the current Russian legislation, and outlines the legal attributes of this phenomenon. The author substantiates the idea that social danger is an attribute of any misdeed, not only of a crime, and argues the thesis that “social danger” is the most appropriate formulation of a material attribute of a misdeed. The author defines the content of the required attribute, applying the interpretations of the Plenum of the Supreme Court of the Russian Federation (in their development from 1999 till 2015) and the achievements of the science of criminal law. The author applies the methods of formal logic, interpretation of law, comparison, generalization, abstraction and legal narration. First of all, the author analyzes the provisions of the Decree of the Plenum of the Supreme Court No. 58, adopted on December 22, 2015, “On the Practice of Awarding Criminal Punishment by the Courts of the Russian Federation”, related to the study of the character of social danger of a deed; compares the Plenum's interpretations of the mentioned attributes of social danger in the previous and the new decrees. The author substantiates the opinion about the dual objective-subjective character of social danger of a deed and about the fact that the existence of such an attribute allows considering the misdeed as a socio-legal phenomenon. The author proposes the working definition of a misdeed.

Keywords:

Offense, a crime, public danger, character, power, criminal damage, quantity, quality, assault, wrongfulness

Approaches to the definition of an offense in Russian legislation

The offense is characterized by a special nature and content both in relation to the types of lawful behavior and in relation to other types of illegal behavior. Today, there are several legislative definitions of an offense, depending on one type or another.

Of the Criminal Code of the Russian Federation in Part 1 of Art. 14 establishes the provision according to which "a crime is recognized as guilty committed socially dangerous act prohibited by this Code under the threat of punishment." Part 1 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation indicates that "an administrative offense is an unlawful, guilty act (inaction) of an individual or legal entity, for which administrative responsibility is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses." Art. 106 of the Tax Code of the Russian Federation defines a tax offense: "A tax offense is a guilty committed unlawful (in violation of the legislation on taxes and fees) act (action or inaction) of a taxpayer, tax agent and other persons for which this Code establishes responsibility."

The Budget Code of the Russian Federation in 2013 moved from the concept of "violation of budgetary legislation" to the term "budget violation", and in accordance with paragraph 1 of Art. 306.1 of the Budget Code of the Russian Federation, such is recognized as “committed in violation of the budgetary legislation of the Russian Federation, other regulatory legal acts governing budgetary legal relations, and contracts (agreements) on the basis of which funds from the budget of the budgetary system of the Russian Federation are provided, the manager of budgetary funds, the manager of budgetary funds, the recipient of budgetary funds, the chief administrator of budget revenues, the chief administrator of the sources of financing the budget deficit, for the fulfillment of which Chapter 30 of this Code provides for the application of budgetary enforcement measures ”. In this definition, in addition to the originality of the approach to the subject composition, one can see other features of the interpretation of such acts in budget legislation. Attention should be paid to the second and third paragraphs of this article, which develop the provisions of its first paragraph. In accordance with clause 2, "an action (inaction) that violates the budgetary legislation of the Russian Federation, other normative legal acts regulating budgetary legal relations committed by a person who is not a participant in the budgetary process entails liability in accordance with the legislation of the Russian Federation." It would seem that what is worth talking about here: the special responsibility of persons who are a special subject. However, clause 3 of this article enshrines the rule according to which "the application of a budgetary coercive measure to a participant in the budget process specified in clause 1 of this article does not exempt his officials if there are appropriate grounds from liability stipulated by the legislation of the Russian Federation." On the one hand, we are talking about the responsibility of the collective entity (participant in the budget process), on the other hand, what is applied to this subject is called responsibility, and in terms of content, only such a coercive measure from those provided for in Art. 306.2 of the RF BC, as a penalty (in fact, a fine), can be called a measure of responsibility, i.e. enters into an additional obligation of the subject, while the rest are not measures of responsibility.

Finally, it is necessary to touch upon the interpretation of the offense in the Labor Code of the Russian Federation. In accordance with Art. 192 of the Labor Code of the Russian Federation, a disciplinary offense is non-performance or improper performance by an employee through his fault of labor duties. The whole wording of this part of this article reads as follows: “For the commission of a disciplinary offense, that is, failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions: 1) remark; 2) a reprimand; 3) dismissal on appropriate grounds. " Perceiving the structure of a disciplinary offense in this way, we can easily see its typicality and similarity in terms of the main characteristics to other branch structures of offenses.

Unfortunately, other sectoral legislation - civil, environmental, constitutional, procedural, etc. - does not contain a legal description of its own type of offense. This can say a lot, even that the corresponding types of responsibility have not yet been formed, or traditionally within the industry it is not customary to define an offense at the level of the law. One way or another, it seems that the named branch legal approaches to the definition of an offense are quite enough for a theoretical generalization and derivation of the construction of signs and a universal definition of an offense.

The general signs of an offense contained in the above formulations from domestic legislation are: 1) an act; 2) illegal or prohibited by law; 3) under the threat of punishment, or liability is provided for for its commission; 4) guilty perfection. As for another one, the so-called. material, a sign of an offense, then in the Criminal Code of the Russian Federation it is called "public danger", while other legislative acts containing definitions of an offense are generally silent about such a sign. In this article, we substantiate the point of view according to which public danger is inherent not only in crime, but also in other offenses, simply of a different nature and degree, that public danger is the main sign of an offense, and also disclose the content of public danger, taking into account the legal positions of the RF Armed Forces and theory jurisprudence.

Public danger is a property of any offense

So, public danger traditionally referred to as a material sign of an offense, is the brainchild of Soviet legal doctrine; public danger means that the committed act either caused real harm to an individual, society or the state, or at the time of its commission created a threat of such infliction. It should be said that it is social danger, and not social harm or something else, that is a sign of an offense. If we pay attention to the above-mentioned legal definitions of sectoral types of offenses, we can notice that today the material sign is called only in the definition of a crime under the Criminal Code of the Russian Federation - a public danger. However, the fact that the rest of the laws are silent about the material attribute in general does not necessarily mean that only crime has a social danger. There are a number of reasons for this, the most important of which is an offense for which a public danger has not been established as a sign, for example, a civil tort, may entail a stricter measure of legal responsibility than a crime characterized by this social danger (we are talking about the fact that the maximum amount of damages may even exceed the maximum amount of a criminal fine; the same administrative arrest is much stricter than compulsory work, or deprivation of the right to hold certain positions or engage in certain activities, since it involves restricting not only labor rights, but also freedom). This issue is considered in more detail by R.L. Khachaturov and D.A. Lipinsky in the monograph "General theory of legal responsibility" ..

Moreover, if we comprehend this problem at a higher level of abstraction, then today there is no clear ladder between the measures of legal responsibility provided for by different branches of law, and nowhere is the rule fixed according to which the mildest criminal punishment that can be imposed for socially dangerous a crime must exceed the most severe punishment provided for an offense by other branches of law. Today, there is an overlap, for example, of the systems of criminal and administrative punishments. Other authors, for example, N.S. Malein also share the universality of the "social danger" feature. According to the scientist, an offense is a deliberate, volitional act of socially dangerous unlawful behavior. L.M. writes about this. Prozumentov in his recent work “Criminalization and decriminalization of acts”: “Note that the term“ public danger ”in the legislation is applied only to crimes. As for other offenses, the legislator does not use this sign in relation to them ... However, this circumstance does not mean at all that the sign of public danger is not inherent in offenses, since it is determined by the harm that is caused or may be caused to public relations. Administrative, disciplinary, civil offenses also harm the interests of the state, society and individual citizens and therefore pose a public danger. " Further, the scientist notes that almost all researchers on this issue were unanimous on the main thing - in understanding the material essence of offenses as antisocial, i.e. harmful to one degree or another antisocial phenomena, due to which the discussion was essentially terminological in nature: how to call the harmfulness of crimes and other offenses - one term "social danger" or different terms (so, one can say that other offenses are not socially dangerous, but socially harmful); and this discussion was generated by the fact that some authors wished to emphasize their difference.

It turns out that we have, by and large, nothing more than a dispute about words, behind which, in fact, there is no objective social basis, since even from an ordinary point of view, it is extremely difficult to distinguish between “danger” and “harmfulness”, especially from the point of view in terms of their ability to negatively affect public relations. Although the term "social danger" seems to us to be more apt than even "special harmfulness" proposed by V.I. Plokhova, and below we will indicate why, but for now we will give one more quote from the work of L.M. Prozumentov. “It seems that the distinction between the concepts of“ social danger ”and“ social harm ”is hardly legitimate, since we are dealing with phenomena of the same order. If the sign of public danger was inherent exclusively in crimes, then there would be no questions when establishing a criminal law prohibition or when it is canceled, and the theory of criminalization and decriminalization of acts would not exist at all. Therefore, the sign of public danger is inherent in all offenses. " Of course, even a reference to the classics of science is not a peremptory argument in the discussion, because this is just another opinion ( This question is very interesting from the point of view of the postclassical methodology of jurisprudence is considered by I.L. Chestnov.) ... But the value of any opinion lies in its adequacy to really existing social conditions, and it seems that L.M. Prozumentov quite realistically assesses the absence of any distinction between public danger and public (social) harm, both of these terms in this case denote the same concept - the property of an act to cause real harm to social values, or, at least, create a threat for causing such harm.

The nature and degree of public danger in the clarifications of the Plenum of the Supreme Court of the Russian Federation

From the above, it can be concluded with sufficient reason that not only crimes, but also any offenses are characterized by public danger, as a result of which it is necessary to consider what this property of the act is, as it is interpreted in judicial practice, in the explanations of the Supreme Court of the Russian Federation , in particular, devoted to the appointment of criminal punishment, as well as in the criminal law literature, since it is there that the named category is analyzed. It should be noted that the difference between crimes and other offenses is traditionally made in terms of indicators that characterize social danger. As such in modern Russian legal science and practice, it is customary to consider at least two:

a) nature of public danger- this is an indicator that, according to the instructions of the Plenum of the Supreme Court of the Russian Federation of October 29, 2009, in the resolution "On some issues of judicial practice in the appointment and execution of criminal punishment" (now no longer valid), is determined by the object of the encroachment, the form of guilt and the category of the crime (in relation to of the general theory of law, the last criterion can be read as: determined by the legislator himself), and is called a qualitative characteristic of the offense; by the nature of public danger, one can distinguish, firstly, crimes and administrative offenses on the one hand, and all other types of offenses on the other, and also, secondly, certain types of crimes and administrative offenses among themselves. This follows from the fact that in the criminal and administrative-delict law, an approximately similar range of objects is taken under protection, and the approach to determining the forms of guilt is the same;

b) degree of public danger- this is an indicator that, according to the same instruction, which is determined depending on the specific circumstances of the offense, in particular on the amount of harm and the severity of the consequences that have occurred, the degree of implementation of the criminal intent, the method of committing the crime, the role of the defendant in the crime committed with complicity, the presence in the deed of circumstances entailing a more severe punishment in accordance with the sanctions of articles of the Special Part of the Criminal Code of the Russian Federation. That is, the degree of social danger of an offense, if we extrapolate this judgment to the general theory of law, depends on all other circumstances of the offense and the personality of the offender, which do not affect the nature of the public danger.

It is necessary to analyze in this work the change in the legal position of the Supreme Court of the Russian Federation on this issue, which occurred at the very end of 2015. On December 22, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 58 “On the Practice of Appointing Criminal Punishment by the Courts of the Russian Federation”. “According to Art. 6 of the Criminal Code of the Russian Federation, the justice of the punishment lies in its compliance with the nature and degree of social danger of the crime, the circumstances of its commission and the personality of the perpetrator ”(paragraph 2 of clause 1 of the said Resolution). And the fairness of punishment, in accordance with the previous paragraph of the same Resolution, is closely related to a strictly individual approach to sentencing, and also contributes to the solution of problems and the achievement of goals facing the Criminal Code of the Russian Federation. All this emphasizes the importance of defining the content of the concepts "nature of public danger" and "degree of public danger", as well as the need to track exactly how the legal position of the RF Armed Forces has changed in this regard, as well as in the assumption of possible reasons for such a change.

“The nature of the social danger of a crime is determined by the criminal law and depends on the elements of corpus delicti established by the court. When taking into account the nature of the social danger of the crime, the courts should bear in mind, first of all, the direction of the act on the values ​​protected by the criminal law and the harm caused to them ”. As you can see, in contrast to the previous ruling, here the Supreme Court puts the nature of public danger in dependence on what values ​​the act infringes upon and to what extent. In other words, the highest judicial body of the Russian Federation refused to use the concept of "object of crime", but specified that in this case there are values ​​protected by the criminal law, apparently due to the debatable nature of the first concept in theory and the absence in the criminal law. The Armed Forces of the Russian Federation also refused to link the nature of public danger with the category of crimes, due, as we think, to the expansion of judicial discretion in 2011, when the courts received the right by virtue of Part 6 of Art. 15 of the Criminal Code of the Russian Federation to downgrade the category of crime in accordance with the punishment actually imposed on the defendant, which deprived the category of crimes of their former harshness and categoricality, made them more uncertain and, therefore, this classification of acts prohibited under threat of criminal punishment became not quite suitable for a qualitative description of their public danger. Instead, the Supreme Court of the Russian Federation indicated that the nature of public danger is determined by the criminal law and depends on the signs of corpus delicti established by the court, i.e. there was a transition to a more universal, but at the same time more abstract formulation. The RF Armed Forces also refused to link the nature of public danger with the form of guilt, as it was in the previous decree. Thus, today, in accordance with the legal position of the Supreme Court of the Russian Federation, the nature of the public danger of an act is such an indicator that is determined by the criminal law and depends on the signs of corpus delicti established by the court, and, first of all, on the object of the encroachment and the harm caused to it. ... The qualitative characteristic of social danger has acquired a more objective character and is actually made dependent on what the act is encroaching on, as well as to what extent.

However, the analysis of the understanding by the Supreme Court of the Russian Federation of the quantitative characteristics of public danger makes it necessary to somewhat clarify the content of its qualitative indicator. “The degree of social danger of a crime is established by the court depending on the specific circumstances of the offense, in particular on the nature and size of the consequences, the method of committing the crime, the role of the defendant in the crime committed with complicity, on the type of intent (direct or indirect) or negligence (frivolity or negligence ). Circumstances mitigating or aggravating punishment (Articles 61 and 63 of the Criminal Code of the Russian Federation) and related to the crime committed (for example, the commission of a crime due to a combination of difficult life circumstances or out of compassion, a particularly active role in the commission of a crime) are also taken into account when determining the degree of public danger crimes ". Comparison of the list of elements included by the RF Armed Forces in the nature of public danger and the degree of public danger allows us to say that of the elements of the corpus delicti, only the object of the crime, as well as such an indicator as the damage inflicted on the object, affects the nature of public danger. At the same time, there is a difficulty in distinguishing the indicated indicator with the nature and size of the consequences included in the degree of public danger.

The only explanation that is acceptable in distinguishing these characteristics is that in relation to the degree of public danger, we are talking about the consequences as a sign of corpus delicti, while regarding the nature of public danger, it is said about the harm caused to the object of the crime, not limited to the corpus delicti, but including all the negative that bears the committed act legally protected values. In the legal literature, these concepts (consequences, harm, result) are reasonably distinguished. S.V. Zemlyukov, for example, writes, characterizing criminal harm, that this phenomenon has two characteristics: 1) it is a constructive, system-forming element of a criminal act, consisting of a harmful change in the object of encroachment and being the main objective indicator of its social danger (social harm); 2) a mandatory sign of corpus delicti, influencing the qualification of the crime and the individualization of responsibility. It is reasonable to assume that the Plenum of the RF Armed Forces in relation to the nature of public danger means the first aspect of criminal harm, and in relation to the degree - the second, referring to harm as consequences.

In addition to the above, it can be noted that the Supreme Court of the Russian Federation transferred the subjective sign of a crime to the degree of public danger, and if earlier the nature of the public danger of the act depended, incl. from the form of guilt, now the degree of social danger is determined by the type of guilt. It should be noted that if the relationship between intent and negligence with tz. more or less their danger is more or less clear and defined in the theory of jurisprudence, then with the ratio of the types of forms of guilt, not everything is so clear and understandable; Nevertheless, the certainty of the position of the highest judicial body of Russia in the new resolution has become more tangible, it cannot be denied that there is no limit to perfection, and far from everything that looks good in theory will work acceptablely when regulating specific social relations. In particular, it is possible to evaluate positively the inclusion of the RF Armed Forces of mitigating and aggravating circumstances specified in Art. 61 and 63 of the Criminal Code of the Russian Federation, since they affect the nature of public danger only when they act as constitutive or qualifying circumstances, and even then not always, in other cases, influencing the individualization of punishment, it hardly makes sense to talk about determining the nature of public danger deeds.

When examining the question of the understanding by the Supreme Court of the Russian Federation of the nature and degree of public danger, one should not forget about the memorable Resolution of the Plenum of the Armed Forces of the Russian Federation "On the Practice of Appointing Criminal Punishment by Courts" dated June 11, 1999 No. 40, which became invalid in January 2007 in connection with the adoption new regulation with the same name. The decree of June 11, 1999 states that “when taking into account the nature and degree of social danger of a crime, it must be assumed that the nature of the social danger of a crime depends on the object of the encroachment established by the court, the form of guilt and the classification of the criminal act by the Criminal Code to the corresponding category of crimes (art. 15 of the Criminal Code of the Russian Federation), and the degree of social danger of a crime is determined by the circumstances of the crime (for example, the degree of implementation of the criminal intent, the method of committing the crime, the amount of harm or the severity of the consequences that have occurred, the role of the defendant in the commission of a crime in complicity). " Perhaps this is the simplest interpretation of the qualitative and quantitative indicators of public danger, lost in the decree of January 11, 2007 and again returned in almost the same form in the decree of October 29, 2009.But, let's say again that the simplicity of the wording, like its theoretical accuracy, by themselves, does not speak of its unconditional applicability in legal practice and unambiguous compliance with criminal law. We can talk about a certain evolution of the understanding by the Supreme Court of the Russian Federation of the nature and degree of public danger, evolution, with some reservations, positive and focused more on practical needs than on theoretical recommendations.

Thus, today the nature of the public danger of an act as its qualitative indicator depends on the object of criminal law protection and the harm caused (caused) to this object. The degree of public danger of an act as its quantitative indicator is determined by all other circumstances of the commission of this act, incl. those listed in the law as mitigating and aggravating punishment. In fact, this approach allows us to talk about the similarity in the nature of public danger between crimes, administrative and tax offenses, and the difference between them - on the one hand, and disciplinary offenses, civil tort - on the other, in view of the fundamental difference in the objects of protection ... But they all have a social danger, since they cause harm to values ​​protected by law, or create a threat of such harm. However, for a more complete understanding of the category of "public danger", it is necessary to consider how it is defined in legal science.

General characteristics of public danger in criminal law science

In the legal literature on criminal law, various options for the content of the concept of "public danger" are presented. “Public danger is an objective reality inherent in certain acts in certain conditions of place, time, situation, the nature of their commission,” notes L.M. Prozumentov. The next statement of the scientist reveals a very important aspect of the social danger of an act - its objectivity, and, at the same time, subjectivity (but not as a sign related to the subject, but due to the fact that the social danger of an act is determined by that era, that historical time in which it is committed , and in this it seems necessary to agree with the professor). “The objectively caused damage, expressed, as a rule, in material terms, does not increase or decrease from a legislative prohibition or its absence. Public danger is determined from the standpoint of social values ​​accepted in society, and is such regardless of the will of the legislator ... The legislator, having identified the fact of public danger of an act, can only fix this fact in the criminal law, i.e. “Recognize” it as a crime, but not “invent” or “assume”. At the same time, social danger as a result of the social assessment of the act is subjective. The social assessment of an act as a crime comes from the consciousness of it (the act) as socially dangerous. Economic, political, socio-psychological, scientific and technical, criminological factors predetermine the social assessment of a socially dangerous act. " It follows from this that the public danger of an act is objective, since its presence or absence does not depend on the will of the legislator and can only be noticed and taken into account when establishing the prohibition of such an act under the threat of punishment. The public danger of an act (of any industry, aimed at any object of protection) is subjective insofar as, not being dependent on the subjective will of the legislator, it depends on the subjective assessment of a particular act by society as dangerous (or not dangerous for him). Thus, social danger is an objective-subjective category, since it combines the objective and subjective principles in their unity and struggle. From the above, in addition, follows the fact that due to the presence of public danger in an offense (crime), the social segment is primary, and the legal segment is secondary, but closely related to the first, therefore, it can be assumed that an offense is a social a legal phenomenon, as well as the legal liability provided for its commission, which will be discussed in more detail below. In the meantime, let us continue to consider the theoretical content of the concept of "public danger".

T.A. Plaksina summarizes the positions existing in criminal law science in five points: 1) the social danger of an act is its qualitative characteristic, which is determined by the interaction of elements of the act and social relations as an object of protection; 2) social danger, being a qualitative characteristic of an act and giving it a certain originality, at the same time has its quantitative expression through the category of the degree of social danger; 3) the social danger of not every single act of a certain type, but the so-called typical public danger (or rather, the typical degree of public danger) of this kind of acts, determined, along with the object, by their typical signs, is important for criminal law-making; 4) the prevalence of a certain type of acts does not affect the typical degree of their social danger, since is not included in any of the subsystems, the interaction of which results in a public danger - neither in the object of protection, nor in the elements of the act as a component of the source of danger; 5) the public danger of the act can be considered: a) as a result of the interaction of the object of protection (public relations) and the source of danger (act); b) as the possibility of a harmful effect of the source of danger on the object of protection. Such a characteristic of social danger is given by the author in the light of her proposed construction of social grounds for criminal responsibility.

Explicitly reveals the components of public danger and N.F. Kuznetsova. In her opinion, social danger is characterized by the following features: 1) The social danger of an act is by nature an objective property of a crime, i.e. independent of their legal assessment by law. However, it becomes a property of a crime only after such an assessment of it by the criminal law. 2) Public danger - an objective-subjective category, determined by the totality of all the mandatory elements of a crime. 3) The Criminal Code of the Russian Federation uses the concept and the term "public danger" in two varieties: as objective and as objective-subjective harmfulness. 4) The public danger of acts serves as the basis for their criminalization by law. 5) Public danger is the basis for bringing the guilty person to criminal responsibility. 6) The nature and degree of public danger determine the categorization of crimes. 7) The social danger of a crime is the first criterion for the individualization of punishment. 8) Public danger is a specific property of a crime that allows it to be delimited from other offenses and minor acts. Agreeing with all the characteristics of the sought category, we would correct the latter: the nature and degree of public danger make it possible to distinguish crimes from other offenses, and its presence from minor acts.

It should be noted that the concept of insignificance is known not only to criminal legislation, which also serves as confirmation in favor of the universality of the sign of public danger for any type of offense. Art. 2.9 of the Code of Administrative Offenses of the Russian Federation reads: "If the committed administrative offense is insignificant, the judge, body, official authorized to resolve the case of an administrative offense may release the person who committed an administrative offense from administrative responsibility and limit themselves to oral remarks." In accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation, "an action (inaction) is not a crime, although formally it contains signs of any act provided for by this Code, but due to its insignificance, it does not pose a public danger." And although the Code of Administrative Offenses of the Russian Federation does not imply such a strict approach, if it is insignificant, excluding the criminality of an act in general, the very fact of the presence of such a legal structure in it speaks of the possession of an administrative offense precisely by a public danger.

In this way, social danger is such a characteristic of an act, which is expressed in the fact that this act causes harm to socially significant social values, or is capable of causing such harm, i.e. creates a threat of harm. Taking into account the second component of the feature, it is necessary to speak about social danger, as a collective concept that encompasses both the harm itself and the threat of its occurrence. In this regard, it seems necessary to disagree with A.A. Gogin, proposing to replace the sign "social danger" with the equivalent "social harmfulness of the act." “The term“ public danger ”is a subjective idea and an estimated assumption of state authorities, parties, movements, associations or an individual about the degree of social harm of a particular phenomenon, based on ideological, political, personal and other views, attitudes and preferences. In turn, harm is adverse consequences of a psychological, moral, physical or material nature. " In our opinion, it is of a purely theoretical and legal nature and is very far from the branch legal realities. It is not entirely clear why the author gives just such an interpretation of social danger. As we have seen above, social danger is an objective-subjective category, moreover, its subjectivity can be recognized as such only in the broadest abstract and highly conventional sense, on the scale of this or that society, which is at a certain historical stage of its life (cultural and historical type) the social danger of actions is quite objective, since it is due to the social relations prevailing in this society. And the construction of "social harmfulness of an act" proposed by the named and some other authors, in our opinion, does not cover the threat of harm. And then, what prevents all those named A.A. Gogin's subjects just as freely interpret social harmfulness, as they, in his opinion, interpret social danger.

So, the material sign of an offense should, with certain reservations, be recognized as decisive, due to the presence in a number of sectoral laws of a design of insignificance that excludes liability or makes it possible for such an exception even in the presence of formal wrongfulness. In addition, this feature is predominantly social in nature, it shows the social essence of the offense as an act that causes harm to socially significant benefits, and creates a threat of causing such harm.

At the end of the article, I would like to propose to the reader's judgment a working version (in our opinion, the most successful) of the definition of an offense: this is a socio-legal phenomenon that is a guilty socially dangerous act prohibited by law under the threat of legal liability. This version of the working definition of an offense is based on the definition of a crime given by the Criminal Code of the Russian Federation, not because the author of the article has a "special relation" to criminal law, but due to the fact that the one presented in the criminal law is, firstly, the most complete of those currently in force in Russian legal definitions of an offense, and secondly, the signs contained in the definition of a crime are formulated accurately and unambiguously, and therefore can serve as the basis for naming the signs of an offense as a whole. And then, historically, the first in the field of punishment for antisocial acts was precisely criminal law, and already from it in the modern legal era, other tort branches began to branch off (with the exception of civil law, which, in terms of civil liability, however, functioned in a completely different sphere social relations), on the basis of which the general theoretical interpretation of an offense may well be similar to the "parental concept" of a crime.

Bibliography

The offense is characterized by four main features: social danger; wrongfulness; guilt; punishability.

Let's consider these signs of an offense in more detail. Public danger- This is a sign of an offense, which consists in causing harm to the legitimate interests of the individual, society and the state. Public danger is characterized by two indicators:

The nature of public danger (qualitative feature);

The degree of public danger (quantitative feature).

According to the degree of public danger, offenses can be divided into two groups:

1) crimes (criminal offenses);

2) unlawful misconduct (administrative misconduct, disciplinary misconduct, civil offenses - tort).

Crimes differ from misdemeanors in that they have a high degree of social danger, which is determined by the value of the object of the encroachment, the amount of damage caused, and the degree of guilt of the offender. In this way, the crime- a socially dangerous act prohibited by criminal law, infringing on relations especially protected by the state: social order, personality, property, public order, etc.

Misconduct (wrongful misconduct) are offenses characterized by a lesser degree of social danger. Depending on the nature of the harm inflicted, the object of the offense and the characteristics of the corresponding sanctions, unlawful offenses are divided into: administrative, disciplinary and civil offenses.

Administrative misconduct - offenses infringing on public order established by law (violation of traffic rules, fire safety, sanitary hygiene, etc.).

Disciplinary misconduct- these are illegal violations of labor, service or academic discipline.

Civil misconduct (tort)- offenses committed in the field of property and non-property relations that are of spiritual value to a person, that is, non-fulfillment or improper fulfillment of obligations assumed, in causing one or another subject of this or that property damage.

Wrongfulness- a normative sign of an offense, which enshrines the prohibition of socially dangerous acts, that is, socially dangerous acts directly provided for by the norms of law are recognized as offenses. There are several types of wrongfulness (as a legal expression of social danger): disciplinary; administrative; civil law; criminal. The circumstances precluding the unlawfulness of the act are: necessary defense - proportionate protection from unlawful encroachments by causing harm to the infringer; extreme necessity - action to eliminate the danger by causing harm to third parties; detention of a person who committed an offense by means of proportionate harm in the event of resistance.

Guilt- This is a subjective sign of an offense, which expresses the internal attitude of a person to a socially dangerous act and its consequences in the form of intent or negligence. According to this criterion, an offense is recognized as an unlawful act committed guilty, that is, knowingly (acts committed by incapacitated and impaired persons are not crimes, these persons are not capable of acting guilty). If the person did not foresee the socially dangerous consequences of stupefying (should not have or could not), there is an incident or an incident without fault.

Punishability- this is a sign of an offense, which expresses its negative state assessment as an act of a dangerous, illegal, guilty person.

An offense is an act for which legal liability is provided in the form of a criminal penalty, a disciplinary, administrative or property penalty.

40. General characteristics of the elements of the composition of the offense

There are a number of opinions regarding legal liability. For example, ND Durmanov, NI Zagorodnikov believe that such a ground is an offense, in the opinion of others (BS Zlobin), the basis of responsibility is guilt. There is no fundamental difference between these views. Proponents of guilty responsibility emphasize the importance of the nature and degree of guilt for the individualization of responsibility. The other side pays more attention to the offense as a fact with which the sanctions of legal norms associate the emergence of liability. Still others, who consider the composition of an offense as the basis for legal responsibility, successfully combine the advantages of different approaches, since they take into account the influence of objective and subjective factors on legal responsibility.

The legal structure of offenses should be understood as a complex of interrelated components (objective and subjective) necessary for the imposition of legal responsibility.

The legal structure of offenses includes:

· Subject - a sensitive, sane person who has reached a certain age or, in cases provided for by law, an organization that committed this act. The age of criminal responsibility, as a general rule, starts from the age of 16, and for especially grave crimes - from the age of 14; civil liability is provided for from the age of 15; administrative - from the age of 16;

· Object - public relations protected by law, to which damage is caused;

· Subjective side - characterizing the mental attitude of a person (guilt) to the perfect offense.

The elements of the subjective side of the offense are:

a) guilt- the main element. Consider two forms of guilt: intent (means that the person who committed the offense was aware of the illegal nature of his act, foresaw and desired the onset of its consequences and deliberately allowed them), which, in turn, can be direct and indirect; and negligence (the subject of the offense either foresees the onset of unlawful consequences of his act and, due to frivolity, hopes to prevent them, or does not foresee them). Depending on this attitude to the consequences of the offense, negligence is divided into arrogance and negligence;

b) purpose- This is the subject's idea of ​​the result of the offense;

v) motive- internal motivation, which was guided by the offender when committing an offense;

The objective side is a set of external signs that characterize this offense:

a) unlawful act (action or inaction);

b) harm caused to public relations;

c) a causal relationship between the unlawful act and the resulting consequences.

It should also be mentioned about such a concept as sanity, which is the ability to act consciously. Sometimes this ability is lost due to mental illness or dementia. In such cases, the court, on the basis of a forensic psychiatric examination, recognizes the person who committed a socially dangerous act as insane. Insanity excludes legal liability.

The offense is characterized by the following features.

1. An offense is such a person's behavior, which is expressed in action or inaction. Thoughts and feelings of people, no matter how “black” they may be, cannot be offenses until they are expressed in specific illegal actions. Failure to act is delinquent

§9. Offenses and their consequences 97

in the event that a person was supposed to perform certain duties provided for by the rule of law, but did not commit (did not provide assistance to a person in a life-threatening condition, if he was obliged to do this, did not perform official duties, did not pay taxes, etc.) . P.).

2. Offenses contradict the law and are performed in spite of them. What is the ultimate offense? First of all, on the interests of other persons who are protected by the law. However, not all human interests are protected by law, therefore, their violation may not always be illegal. So, competition diminishes someone's private economic interests, but there is no offense here.

3. Offenses committed only by people. This is also true when organizations are responsible, since illegal acts on their behalf are committed by people who are in the collective of organizations. History knows cases when animals (pigs, mice, rats, dogs, etc.) were recognized as subjects of offenses and they were judged to the fullest extent of the law. But it was during the Middle Ages. However, not every person can be recognized as an offender, but only the one who is accountable for his actions and can lead himself. Therefore, an act committed by an insane (or incapacitated) person or a minor is not an offense.

4. An offense is recognized only guilty behavior of subjects of law. If there is no fault, then the act is not recognized as an offense, although outwardly it contradicts the existing legal order (for example, accidental deprivation of life). A person will be recognized guilty if it is established that at the time of the commission of a socially dangerous unlawful act he had a choice: to commit it or to refrain from it, which indicates that the person knowingly committed an offense, reasonably guided his actions at that moment.

5. Offenses have a socially dangerous character, that is, they cause harm or create a danger of such harm to an individual, property, the state or society as a whole. The most dangerous of them are recognized by law as crimes. The public danger of a single offense may not be obvious. In fact, what happened if a pedestrian crossed the street at a red traffic light or in the wrong place? There are no dangerous (harmful) consequences. But if

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take such misdemeanors in aggregate, then there is a disorganization of traffic. A critical mass of such offenses will already give quite obvious harm from road accidents.

6. The offense entails the application to the offender measures of state coercion.

Types of offenses. All types of offenses the degree of their public danger are subdivided into: crimes and misdemeanors.

The most dangerous type of offense is crimes. What is a crime is determined by the law (the Criminal Code of the Russian Federation), adopted by the highest legislative body. The legislator, when deciding whether to classify an act as a crime, is guided by the following criteria:

a) the importance of public relations, which became the object
encroachments (life, health, honor, dignity of the person,
property, state security, management order
society, fundamental rights and freedoms of citizens, etc.);

b) the amount of damage caused. So, if, as a result,
but a transport accident has a property
damage, but no harm to life, health of people, then
the act will not be considered a crime;

v) way, place and time committing a wrongful act
niya;

G) personality offender.

The second (very numerous) group of offenses is misconduct. They are characterized by a lesser degree of public danger in comparison with crimes. Misdemeanors as a type of offense are extremely heterogeneous and, depending on the sphere of public relations, on which they encroach, they are divided into eight types.

1. Administrative misconduct- these are offenses, encroaching on public order established by law, on relations in the field of implementation of executive and administrative activities of the state, not related to the performance of official duties. Administrative offenses, for example, are various violations of traffic rules (speeding, non-observance of traffic signals, drunk driving, etc.), fire safety rules, sanitary hygiene at

i § 9. Offenses and their types 99

receptions, drinking alcoholic beverages in a public place, free travel, etc.

2. Disciplinary misconduct- offenses that are committed in the field of labor relations and violate the working order enterprises, institutions, organizations. By weakening labor discipline (service, military, training), disciplinary misconduct contributes to the disorganization of the work of organizations and a decrease in its effectiveness. Examples of such misconduct include being late for service, absenteeism, failure to comply with the orders of the administration, violation of technological rules, unfair performance of labor duties, etc.

3. Material misconduct- offenses that also take place in the field of labor relations, but related to causing harm to the organization in which the offender is in the service(damage to tools, lack of material values, their improper storage, etc.).

4. Civil misconduct- offenses committed in the field of property and non-property relations that are of spiritual value to a person (honor, dignity, authorship) and are protected by means of civil law. Civil offenses are expressed in causing property or moral harm to organizations or individuals(non-fulfillment of contractual obligations, causing harm by a source of increased danger, dissemination of information discrediting the honor and dignity of a citizen, etc.).

5. Financial misconduct- offenses in the collection and distribution of financial resources of the state(concealment of taxes, violation of financial reporting, rules for conducting cash transactions, etc.).

6. Family misconduct- offenses in the field of marriage and family relations(non-fulfillment of marital duties, refusal to maintain or raise children, etc.).

7. Constitutional misconduct- these are violations, expressed, in particular, in the publication by state bodies of such normative acts that contradict the Constitution.

8. Procedural misconduct- it violation of the procedure for administering justice established by law, passing a legal case in a law enforcement body. An example of such a misconduct may be the failure of a witness to appear when summoned by an investigator, prosecutor, or court, for which a fine may be imposed,

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or the defendant's failure to appear in court, which is the basis for changing the preventive measure to a more severe one (for example, instead of a written undertaking not to leave the place - arrest).

Composition of the offense- a set of its elements. The structure of the offense is as follows: object, subject, objective and subjective sides.

1. The object of the offense are social benefits, phenomena of the surrounding world, to which the unlawful act is directed. It is possible to speak in detail about the object of a specific offense: the objects of encroachment are the life of a person, his health, the property of a citizen, organizations, the atmosphere polluted by the offender, the forest he is destroying, etc. P.

2. The subject of the offense a person who has committed a guilty unlawful act is recognized. It can be an individual or an organization. It is important that they have all the qualities necessary for the subject of law (legal capacity, legal capacity, delinquency).

3. Objective side of the offense is an external manifestation of a wrongful act. It is by this manifestation that one can judge what happened, where, when and what harm was caused. The objective side of the offense is a very complex element of the offense, which requires a lot of effort and attention from a court or other law enforcement body to establish it. The elements of the objective side of any offense are:

a) act(action or inaction);

b) wrongfulness, i.e. a contradiction to its prescriptions
legal regulations;

v) harm, caused by the act, i.e., unfavorable and
the undesirable consequences resulting from
offenses (loss of health, property, derogation of honor
and dignity, decrease in state revenues, etc.);

G) causation between the act and the harm that has occurred,
that is, such a connection between them, due to which the act is not
walkability causes harm. It is precisely to find out when
formal communication, actions are directed, for example, an investigator, a mustache
tantalizing, whether preceded by time this or that
behavior towards the result or not;

e) place, time, method, setting of the act.

§ 9. Offenses and their types

4. The subjective side of the offense- it is made up of guilt, motive, Purpose. Guilt as a mental attitude of a person to a perfect offense has various forms. She may be deliberate and careless. There is intent direct and indirect. Careless guilt is also divided into frivolity and negligence. It is the subjective side that makes it possible to distinguish an offense from an incident (case). An incident is a fact that does not arise in connection with the will and desire of a person. An incident can be both a consequence of the action of natural phenomena (flood, fire), and the result of the actions of other people, and even the result of the actions of the formal cause of harm, which the person did not realize or did not foresee their possible consequences. An incident is always an innocent infliction of harm, although in some of its formal features, a case is similar to an offense. Being devoid of guilt (willful or reckless), it does not entail the responsibility of the person against whom it is being considered.

An example of an incident. Driving along a quiet lane in a car, the driver suddenly saw a ball roll out of the bushes onto the road, followed by a girl about five years old. Wanting to prevent a collision with the girl, the driver abruptly turned the steering wheel to the left. The girl survived and was unharmed, but the teenager sitting in the back seat, as a result of such a sharp turn, hit his head on the pillar of the car interior and was seriously injured. The parents asked to bring the driver to criminal responsibility. The court, having considered the case, found the driver innocent, indicating that although the driver had to foresee all the consequences of his abrupt actions, he could not do this due to the small time interval (split second), “separating the moment the girl appeared on the road and the moment of making a decision - turn the steering wheel sharply.

An example of intent. The owners of the dacha, which they leave for the winter, concerned about the problem of the safety of their property and wanting to punish possible kidnappers, left an unfinished bottle of alcohol in which they poured poison. In the event of the death of any of those wishing to "taste" the contents of the bottle, the owners of the dacha will be responsible for premeditated murder.

An example of negligence. Teenagers who have reached 15 years old examined a hunting rifle in the apartment of one of them. One of the friends, feeling with interest the butt, the barrel of the weapon, pulled the trigger ... The gun turned out to be loaded. The bullet flew into the stomach of the person standing opposite the

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sprout. He died from the wound received. The person who pulled the trigger should be considered guilty (negligence in the form of negligence) of the murder committed.

The difference between the types of intent and negligence, as well as the incident can be illustrated (Table 2.1).