Conducting inspections without sufficient grounds. Criminal frivolity Crime due to negligence

Negligence, like intent, is an independent form of guilt. Indiscretion is divided into two types: frivolity and negligence.

Frivolity assumes that a person foresees the possibility of the onset of socially dangerous consequences of his action or inaction, but without sufficient grounds for that, he arrogantly counts on the prevention of these consequences (part 2 of article 26 of the Criminal Code). Frivolity is characterized by the fact that the guilty person foresees the possibility of the onset of socially dangerous consequences of his action (inaction), but without sufficient grounds for that, arrogantly counts on preventing these consequences.

In case of negligence, a person does not foresee the possibility of the onset of socially dangerous consequences of his actions or inaction, although with the necessary care and prudence he should and could have foreseen these consequences (part 3 of article 26 of the Criminal Code). negligence as a form of guilt is characterized by: 1) lack of foresight of socially dangerous consequences; 2) the obligation to foresee such consequences and 3) the subjective possibility of foreseeing them.

5. Crimes with two forms of guilt

A crime with two forms of guilt is a deliberate crime, as a result of the commission of which serious consequences are caused, which, according to the law, entail a more severe punishment and which are not covered by the intent of the person. Criminal liability for such consequences arises only if the person foresaw the possibility of their occurrence, but without sufficient reason, arrogantly counted on their prevention, or if the person did not foresee, but should and could have foreseen the possibility of the occurrence of these consequences (Art . 27 CC). In general, such a crime is recognized as committed intentionally.

Crimes with two forms of guilt are characterized by the following features:

a) the presence of two consequences as a result of the commission of a crime;

b) a combination of different forms of guilt in relation to these two consequences;

c) two forms of guilt can only take place in qualified compositions;

d) only the attitude towards the characteristics qualifying the act can be imprudent;

e) crimes with two forms of guilt are classified by the legislator as intentional crimes.

6. Motive and purpose of the crime

The motive and purpose of the crime are optional features of the subjective side of the crime. They become mandatory and therefore are taken into account when qualifying crimes only in the cases specified in the law.

The motive of the crime is the internal motives determined by certain needs and interests, which cause a person's determination to commit a crime. The purpose of the crime is the representation of the person committing the crime about the desired result, which he seeks to achieve by committing the crime.

The motives and goals are always specific and are indicated, as a rule, in the articles of the Special Part of the Criminal Code either as the main feature of the composition, or as a qualifying and privileged feature. When specifying a motive as a mandatory feature of the composition, the legislator usually uses the term "incentives" or "interest".

We find an indication of the motive for committing a crime in the Special Part only in qualified corpus delicti as signs qualifying the act. Thus, the infliction of grievous bodily harm is recognized as more dangerous if it is committed on the basis of national, racial, religious hatred or enmity (clause "e", part 2 of article 111 of the Criminal Code).

More often, the articles of the Special Part of the Criminal Code contain indications of the purpose of the crime. For example, the goal as the main feature of a crime is referred to in Art. 187 of the Criminal Code, which provides for liability for the manufacture for the purpose of marketing or sale of counterfeit credit or payment cards, as well as other payment documents that are not securities. In many articles, a specific purpose acts as the qualifying features of the act.

All motives and goals are divided into two groups:

1) low-lying;

2) devoid of base content.

The base ones include such motives and goals with which the legislator associates the establishment or strengthening of criminal liability.

The value of motive and goals is determined by the fact that, firstly, they can act as mandatory elements of specific offenses. Secondly, the motive and purpose can be included by the legislator in the articles of the Special Part as signs qualifying a crime. And, thirdly, the motive and the goal, being optional signs of the subjective side, can be taken into account by the court as mitigating circumstances in the individualization of punishment.

Resolution of the Federal Arbitration Court of the North Caucasus District of June 6, 2006 N F08-2382 / 06-980A "In accordance with Article 2.2 of the Code of Administrative Offenses of the Russian Federation, the form of guilt can be either intentional or careless. Careless form assumes that a person who committed an offense foresaw the possibility of harmful consequences of his action, but without sufficient grounds for that, presumptuously counted on the prevention of such consequences or did not foresee the possibility of such consequences, although he should and could have foreseen them "(extraction)

Ruling of the Federal Arbitration Court of the North Caucasus District
dated June 6, 2006 N F08-2382 / 06-980A
"In accordance with Article 2.2 of the RF Code of Administrative
offenses, the form of guilt can be either intentional,
and careless. A careless form suggests that a person
committed the offense foresaw the possibility of harmful
the consequences of their actions, but without sufficient reason
presumptuously counted on preventing such consequences or
did not foresee the possibility of such consequences, although it should
was and could have foreseen them "
(extract)

The Interdistrict Inspectorate of the Federal Tax Service No. 1 for the Republic of Kalmykia (hereinafter - the Tax Inspectorate) filed a claim with the arbitration court to collect 5 thousand rubles from the Vertische peasant farm (hereinafter - the peasant farm) a fine on the basis of Article 118 of the Tax Code of the Russian Federation for violation by the taxpayer of the deadline for submitting information to the tax authority on opening a bank account.

By a court decision of November 29, 2005, a 5 thousand rubles fine and a state duty were collected from the peasant farm in the case. The court concluded that the taxpayer violated paragraph 2 of article 23 Of the Tax Code of the Russian Federation. By the decision of the appellate instance dated 20.02.06 the decision of 29.11.05 was canceled, 5 thousand rubles of a fine and state duty were collected from the peasant farm in the case. The judicial act is motivated by the fact that, in violation of Article 137 of the Arbitration Procedural Code of the Russian Federation, the court of first instance considered the case in the absence of the parties in the preliminary court session without issuing a ruling on the appointment of the trial, therefore the decision was canceled.

The appellate court concluded that the peasant farm had violated the 10-day deadline for reporting to the tax inspectorate about opening a bank account. The peasant farm "Vertische" has applied to the Federal Arbitration Court of the North Caucasus District with a cassation appeal, in which it asks for the decision of 29.11.05 and the ruling of the appellate instance of 20.02.06 to cancel, to reject the application. The person concerned notes that he did not have the opportunity to timely find out about the opening of a current account, since the bank account agreement was being processed at the head bank in Elista, 250 km from the location of the peasant farm. The bank did not send a notification to the person concerned about opening an account. A copy of the bank account agreement was handed over to the peasant farm after receiving the decision of the tax inspectorate dated 06.05.05 N 4.

The submitter of the cassation appeal filed a petition for reclaiming from the Kalmyk branch of Sberbank of Russia N 8579 of the bank account agreement dated 04.21.05 N 219 and documents confirming the dispatch and delivery of the agreement and notification of opening a current account to the Vertische peasant farm.

Based on the powers of the court of cassation, the provisions of Articles 286, 287 of the Arbitration Procedure Code of the Russian Federation, the petition of the interested person should be refused. The tax inspectorate submitted a response to the cassation appeal, in which it considers the contested judicial acts to be lawful and justified and asks to dismiss the cassation appeal. Having studied the materials of the case, the Federal Arbitration Court of the North Caucasian District considers that the complaint is not subject to satisfaction on the following grounds. As can be seen from the materials of the case, on April 21, 2005, the North Caucasian bank of Sberbank of Russia opened a settlement account of the Vertische farm in the Kalmyk branch No. 8579 on the basis of a bank account agreement. By the decision of the tax inspectorate dated 06.05.05 N 4, the person concerned was held liable under Article 118 of the Tax Code of the Russian Federation in the form of a 5 thousand rubles fine for violating the 10-day period established paragraph 2 of article 23 Of the Tax Code of the Russian Federation for a written notification by a taxpayer about opening a bank account. By the requirement dated 06.05.05, the farm was asked to pay the amount of the fine by 16.05.05. The peasant farm did not pay the fine on a voluntary basis, so the tax inspectorate applied to the arbitration court with an application for compulsory recovery. Satisfying the statement of the tax inspectorate, the appellate instance concluded that the interested person had violated the 10-day period for the tax inspectorate's notification of opening a bank account. According to paragraph 2 of article 23 Of the Tax Code of the Russian Federation, taxpayers are required to notify the tax authority at the place of registration within ten days in writing about the opening or closing of accounts. In accordance with Article 118 of this Code, a violation by a taxpayer of the time period established by the Code for submitting information to the tax authority on opening or closing an account shall result in a fine of 5 thousand rubles. Establishing the duty of the taxpayer to notify the tax authority in writing about the opening (closing) of an account within ten days, tax code The Russian Federation and other bylaws do not provide for the date from which this period should be calculated. Therefore, this period is calculated from the moment when the taxpayer found out or should have found out about opening a bank account. In the cassation appeal, the head of the farm notes that without a copy of the bank account agreement signed by the bank and notifying the bank about the opening of a current account, the farm could not know about opening an account. In accordance with paragraph 2 of Article 846 Of the Civil Code of the Russian Federation, which establishes the procedure for concluding a bank account agreement, the bank must conclude such an agreement with the client who has applied to it on terms that correspond to the current legislation and announced by the bank for opening accounts of this type. The lack of information from the peasant farm about the signing of the bank account agreement by the bank (the head enterprise in Elista) does not in itself indicate that the farm could not be aware of the opening of a current account on 04.21.05 and the beginning of its operation from that moment, in including from the employees of the Gorodovikovsky branch of the Kalmyk branch N 8579 of the North Caucasian bank of Sberbank of Russia, through which the documents were drawn up. The Ministry of the Russian Federation for Taxes and Levies issued an order dated 04.03.04 N BG-3-24 / [email protected] "On approval of the forms of documents containing information on opening (closing) a bank account, changing the bank account number of legal entities and individual entrepreneurs, and the procedure for their submission." In accordance with the aforementioned order, there is no form of notification of opening (closing) an account to inform clients. Thus, the current legislation does not provide for the obligation of the bank to send a notification to the taxpayer about opening an account.

Consequently, the ten-day period should be calculated from the day the farm submits to the bank an application for opening an account and signs a bank account agreement on its part. A written message to the tax authority about opening an account was sent in violation of the established 10-day period.

In accordance with article 2.2 of the Code of Administrative Offenses of the Russian Federation, the form of guilt can be either intentional or careless. The imprudent form assumes that the person who committed the offense foresaw the possibility of harmful consequences of his action, but without sufficient grounds for that, presumptuously counted on the prevention of such consequences or did not foresee the possibility of such consequences, although he should and could have foreseen them.

Under these circumstances, the courts came to the correct conclusion that the tax authority had grounds for bringing the Vertische farm to tax liability under Article 118 of the Tax Code of the Russian Federation.

When resolving a dispute, the rules of law were correctly applied by the court of appeal, there are no violations of procedural rules entailing the cancellation or amendment of the judicial act adopted by it (Article 288 of the Arbitration Procedure Code of the Russian Federation).

Guided by Articles 274, 286 - 289 of the Arbitration Procedure Code of the Russian Federation, the Federal Arbitration Court of the North Caucasus District ruled:

the decision of the appellate instance of the Arbitration Court of the Republic of Kalmykia dated 20.02.06 in case No. A22-1988 / 05-9-242 shall be left unchanged, and the cassation appeal - dismissed.

The decision comes into force from the day of its adoption.

The crime is recognized as committed by frivolityif the person who committed it foresaw the possibility of the onset of socially dangerous consequences of his action (or inaction), but without sufficient grounds presumptuously counted on preventing them (part 2 of article 26 of the Criminal Code of the Russian Federation).

Anticipation of the possibility of the onset of socially dangerous consequences of one's action or inaction constitutes an intellectual element of frivolity, and an arrogant calculation to prevent them is its volitional element.

Characterizing the intellectual element of frivolity, the legislator only points to the possibility of foreseeing socially dangerous consequences, but omits the mental attitude to action or inaction. Frivolity, as a rule, is associated with a deliberate violation of certain precautions established to prevent harm, therefore mindfulness of behavior makes this kind of careless guilt more dangerous than carelessness.

In its intellectual element, frivolity bears some resemblance to the indirect. But if with an indirect intent the guilty person foresees a real (i.e. for a given specific case) possibility of socially dangerous consequences, then with frivolity this possibility is foreseen as an abstract one: the subject foresees that such actions in general may entail socially dangerous consequences, but believes that in this particular case they will not occur.

The main, the main difference between frivolity and indirect intent consists in the content of the volitional element. If, with an indirect intent, the culprit deliberately allows the onset of socially dangerous consequences, i.e. approvingly refers to them, then with frivolity there is not only desire, but also a conscious admission of these consequences, and, on the contrary, the subject seeks to prevent their occurrence, treats them negatively.

S. and I., having entered the house of 76-year-old A. with the aim of stealing, beat her severely, causing fractures of the bones of the nose, cheekbones and the base of the skull, tied her and put a rag gag in her mouth. Having stolen the things they were interested in, S. and I. left A. bound hand and foot, with a blood-soaked nasopharynx and a gag in his mouth, thrown over with a blanket and a mattress. A. died as a result of mechanical asphyxia. The described circumstances indicate that S. and I. foresaw the possibility of the death of an old woman, whose mouth was closed with a gag, and the nasopharynx was damaged during the beating and covered with blood, and deliberately allowed such a consequence to occur, that is, acted with indirect intent (BVS RF. 1997. No. 3. S. 8-9).

The law characterizes the volitional content of frivolity not just as a hope, but as a calculation to prevent socially dangerous consequences, which has quite real, albeit insufficient, grounds. In this case, the perpetrator counts on specific, real circumstances that, in his opinion, are capable of counteracting the onset of a criminal result: on his own personal qualities (strength, dexterity, experience, skill), as well as on other circumstances, the value of which he estimates incorrectly, as a result of which the calculation on the prevention of a criminal result turns out to be unfounded, arrogant, not having sufficient grounds.

In order to prevent the theft of fish from his hedge, he made an alarm, for which he connected wires from his house to the walkways from which the hedge was placed in the river and connected them to a 220 V power grid, and set a bell in the house. While trying to disconnect the wires from the alarm system with the intent of stealing, the underage O. was electrocuted at night. Sh. Foresaw the possibility of grave consequences and, in order to prevent them, widely notified his fellow villagers about the existence of an alarm under significant tension and asked his neighbors not to let their children come to this place. In addition, he took a number of technical measures to prevent accidental electric shock, moreover, he connected the alarm to the mains only at night and only when he was at home himself. Therefore, the Plenum of the Supreme Court of the USSR with good reason indicated that Sh., Knowing about the danger posed to a person by an electric current with a voltage of 220 V, was counting not on chance, but on such objective factors that, in his opinion, excluded the possibility of grave consequences, those. acted not deliberately, but through negligence (BVS USSR. 1969. No. 1. P. 24).

Negligence

The crime is presumed to have been committed through negligenceif the person who committed it did not foresee the possibility of the onset of socially dangerous consequences, although with the necessary care and foresight should and could have foreseen them (part 3 of article 26 of the Criminal Code of the Russian Federation).

Carelessness is characterized by two characteristics: negative and positive.

A negative sign - a person's failure to foresee the possibility of socially dangerous consequences - includes:

• lack of awareness of the social danger of the committed act;
• lack of foresight of criminal consequences.

A positive sign is that the culprit should and could have shown the necessary attentiveness and prudence and foresee the onset of actually caused socially dangerous consequences. This feature is established using two criteria: must means an objective criterion, and the possibility of foresight is a subjective criterion of negligence.

The objective criterion of negligence is normative and implies a duty persons to foresee the possibility of the onset of socially dangerous consequences, observing the requirements of the necessary care and prudence. This duty can be based on the law, on the official status of the perpetrator, on professional or on the rules of the hostel, etc.

The subjective criterion of negligence means the personal ability of a person in a specific situation and taking into account his individual qualities anticipate the possibility of socially dangerous consequences... This means that the possibility of foreseeing the consequences is determined, firstly, by the peculiarities of the situation in which the act is committed, and secondly, by the individual qualities of the perpetrator. The situation should not be overly difficult for the task of anticipating the consequences to be solvable in principle. And the individual qualities of the perpetrator (his physical data, level of development, education, professional and life experience, state of health, degree of susceptibility, etc.) should make it possible to correctly perceive the information arising from the environment in which the act was committed, and to draw informed conclusions and correct assessments. The presence of these two prerequisites makes it really possible for the culprit to foresee socially dangerous consequences.

While drinking alcohol together, M. quarreled with K. and at the moment when she brought the porcelain cup to her mouth to drink, he hit her in the face with his hand. The broken cup caused damage to the eye, which in itself, according to the expert assessment, was moderately harmful to health, but caused persistent changes in the eye and permanent disfigurement of the face. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation qualified M.'s actions as causing grievous bodily harm by negligence, since, striking a blow to the face, he did not foresee the onset of grievous bodily harm, although he should and could have foreseen such consequences (See: BVS RF. 1994. No. 5. S. 5-6).

The psychological content of both types of intent and both types of negligence is presented in the table.

• 1. A crime committed through negligence is an act committed through frivolity or negligence.
• 2. A crime shall be recognized as committed out of frivolity if the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that he presumptuously hoped to prevent these consequences.
• 3. A crime shall be recognized as committed by negligence if the person did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should and could have foreseen these consequences. 1
• 1. The Criminal Code provides for two types of careless guilt: frivolity (previously this type was called arrogance) and negligence.
• 2. Frivolity, like indirect intent, as an intellectual element includes foreseeing the possibility of the onset of socially dangerous consequences and in this sense requires differentiation from the specified type of intent.

Unlike indirect intent, when a person foresees a real possibility of causing harm precisely by his action (inaction) in a given specific situation, in case of criminal frivolity, the guilty person foresees only an abstract danger of the consequences of his act, which in itself may not be socially dangerous: he understands that an action (inaction) that he commits (for example, a violation of traffic rules, safety rules for the production of various works, etc.) can entail the onset of socially dangerous consequences, but in this particular case he expects to avoid such consequences, hoping for some or certain factors (skill, experience, etc.). Such a calculation should be based on real circumstances related to the professional qualities, skills and abilities of the guilty person, the peculiarities of the technical means, devices used by him, the specific specifics of the situation, etc. As a result, this calculation, which was aimed at avoiding socially dangerous consequences, turned out to be arrogant (underestimated or overestimated), which makes it possible to define the subject's guilt not as an indirect intent, but as frivolity.

3. The peculiarity of negligence is that the person who caused socially dangerous consequences or did not prevent them, when committing his act, did not foresee these consequences, did not represent them. However, if a person should have foreseen them (objective criterion of negligence) and, moreover, could have foreseen and, accordingly, prevented the occurrence of these consequences (subjective criterion of negligence), but did not do this, because of which socially dangerous consequences occurred, then there are grounds to assert about the commission of a crime by negligence, and not about the absence of fault, about innocent harm.

The obligation to foresee the consequences of one's behavior for a particular subject is established on the basis of special requirements for persons of a certain profession, engaged in the relevant activity, or on the basis of well-known rules of precaution that must be observed by any sane person. Only when the subject, who did not foresee, but was obliged to foresee and prevent socially dangerous consequences, could, but did not do it, are there grounds for admitting his guilt in the form of negligence.

So, in a specific case, the court came to the correct conclusion that the crime was committed through negligence, when the perpetrator, believing that he was actually encroaching on him and firing shots, believed that he was in a state of necessary defense, as a result of which he did not foresee the possibility of socially dangerous consequences of his actions, although with the necessary care and foresight he should and could have foreseen these consequences and the imaginary encroachment on him. According to Part 1 of the commented article, a crime committed through negligence is recognized as committed through negligence, therefore the court qualified R.'s actions in relation to X. A. and S. under Part 2 of Art. 109 of the Criminal Code - causing death by negligence to two persons; R.'s actions against B. are qualified under Part 1 of Art. 111 of the Criminal Code, since it was established that in this particular case the convict acted with direct intent and this conclusion was motivated by the court in the verdict.

4. The Criminal Code, with rare exceptions (Articles 215, 217), provides for liability for careless behavior in cases where it entailed relevant socially dangerous consequences, ie for crimes with material composition. In itself, the creation of the danger of the onset of consequences as a result of the shown frivolity or negligence, in the absence of real harm, does not entail the responsibility of the subject, including in cases where the possible consequences were prevented for reasons beyond his control (by other persons, etc.). P.).

The presence in the Criminal Code of some so-called threatening offenses (Articles 340, 341, 342) does not refute, but confirms the stated rule, since the possibility of being held accountable for committing these crimes through negligence is linked only with the onset of material (grave) consequences, which is defined in privileged norms of the aforementioned articles of the Criminal Code, providing in this regard less severe sanctions compared to the same acts committed intentionally. This situation is fully consistent with Art. 15 of the Criminal Code on the types of crimes, according to which reckless acts cannot be classified as grave and especially grave crimes.

• Determination of the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation of 08.04.2003 No. KAS03-74.

The full text of Art. 26 of the Criminal Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 26 of the Criminal Code of the Russian Federation.

1. A crime committed through negligence is an act committed through frivolity or negligence.

2. A crime is considered to have been committed out of frivolity if the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that he presumptuously counted on preventing these consequences.

Commentary on Article 26 of the Criminal Code of the Russian Federation

1. Part 1 of the commented article establishes the types of such a form of guilt as negligence, namely, frivolity and negligence.

2. According to Part 2 of Art. 26 of the Criminal Code of the Russian Federation, the fact of committing a crime out of frivolity takes place, if the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that, arrogantly counted on preventing these consequences.

The intellectual element of this type of careless form of guilt lies in anticipating the onset of socially dangerous actions, but at the same time, according to the volitional element, the person not only foresees such consequences, but also actively does not want them to occur. However, the legislator determined that such activity, due to the so-called "suspiciousness" of a person about his ability to prevent harm caused to him, can also be recognized as a basis for bringing a person to criminal liability (that is, if the person presumptuously expected to prevent the result of his act). At the same time, a person who seeks to prevent the socially dangerous consequences of violating the prohibitions established by the criminal law takes specific actions for this, hoping to use certain circumstances for this (his personal, professional qualities, the help of other persons, the functions of certain objects or mechanisms) however, due to the circumstances, the person could not, for objective reasons, count on these conditions.

Thus, the court concluded that the injuries that resulted in the death of the victim were caused by the convicted person through negligence as a result of his violation of the Traffic Rules and a collision with a tree (see the determination of the Novosibirsk Regional Court of 15.02.2012 in case N 22-811 / 2012) ...

3. A crime shall be recognized as committed through negligence if the person did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should and could have foreseen these consequences.

A distinctive feature of this type of negligence, negligence, is the intellectual element of the form of guilt, that is, the mental attitude to what is happening. A person is not aware of the socially dangerous nature of his actions, inaction, and therefore does not take any action to prevent them. If frivolity is an active form of negligence, then negligence is always the passive behavior of the guilty person. A person does not see the need to take actions to prevent the criminal consequences created by him, since he does not see that his actions (actions, inaction) can become the basis for the onset of socially dangerous consequences, which means criminal punishment for him, however, with due diligence, the person could and should have foreseen such consequences.

Thus, the actions of the convict were qualified by the court due to the fact that the cause of the death of the children was the guilty negligent actions of the convict and another convict in this case, who, in violation of instructions and regulations, allowed the children to bathe in a place that was not intended for bathing, children were forbidden to swim, but in fact they were allowed to do so (see the decision of the Krasnodar Regional Court of March 21, 2012 N 4u-976/12).