Criminal law. Excluding criminality of act circumstances

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2018-03-25 23:45:20

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In life there are situations when the behavior of the subject, externally covered by the offence and in normal circumstances give rise to criminal liability, acts as a public utility. In certain circumstances the inaction or action of a person acquires a different meaning. This behavior does not apply criminal law. The circumstances excluding criminality of act, hold a special place in legal doctrine. Question about them arises only when such conduct is detrimental to protected social relations and in the criminal code (Special part) recorded the corresponding ban on the use of punishment. Next, let's consider the concept and types of circumstances excluding criminality of act.

excluding criminality of act circumstances

General information

The System of the circumstances excluding criminality of act, plays a significant role in the process of establishing the wrongfulness of the conduct and guilt of a person. Only the will of the lawmakers introducing new or eliminating old facts, according to which the perpetrators of illegal acts externally, can avoid the application to itself of punishment. The concept and kinds of the circumstances excluding criminality of an act formulated in the dispositive norms. This means that in each case the person can choose between several behaviours. In this case, the entity is not required uncontested and well-defined behavioral acts. This approach fully reflects the principles of justice and humanity listed in Chapter 1 of the code.

The Concept of circumstances excluding criminality of act

There is no generally accepted definition of these categories. Circumstances excluding the criminality of an act and criminal liability in the absence of fault and wrongfulness, are actions/inactions that looks have similarities with behavioral acts provided for in the articles of the criminal code, reflected in the damage to protected interests, but committed in the implementation of subjective rights, fulfillment of legal obligations or duty under the conditions of its validity.

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Distinctive traits

In the criminal code there are specific articles formulating the circumstances excluding criminality of act. The value of each factor is estimated individually, for each case separately. However, there are features common to all such behavioral acts. General description of the circumstances excluding criminality of act, the following:

  1. When performing behavioral acts, is given in V. 37-42 of the criminal code, there is always the activity. Such actions cause great harm to the protected interests, that is, other persons, state or society. In this connection the question arises about the possibility of punishment.
  2. The Behavior is almost always based on socially useful motivations. In some situations these sorts of impulses are initiated by external factors. For example, excluding criminality of act circumstances may arise from a desire to protect themselves from the threat of assault or defend from the attack of another person, to detain the offender, to prevent possibly more damage and so on. In other situations, motivations arise under the influence of the internal settings and are expressed in the desire to achieve a socially useful result.
  3. If there are conditions of legitimacy, behavioral acts act as circumstances precluding criminality and criminal, administrative, civil or disciplinary sanction.
  4. Damage non-compliance with terms of legality established criminal code, are punishable. However, in view of social utility motives for committing such behavioral acts they recognized as a crime with extenuating circumstances.

self-defense as a circumstance excluding criminality of act

Historical background

The Circumstances excluding criminality of act, the signs of such behavior in the Soviet doctrine was viewed as the conjunction of a limited number of rules. Thus, the previous legislation has set more of this kind of articles. So, in the code of 1903 was fixed circumstances excluding the culpability of the conduct and the wrongfulness of inflicting harm. In the first group, for example, were:

  • Failure to reach an appropriate age for the punishment.
  • Painful disorder and so on.

The second group was included:

  • Absolutely necessary.
  • Coercion.
  • Self-defense.
  • The execution of the order or the law.

In the UK from 1996 to the circumstances excluding criminality of act, are:

  1. Damage in the process of arresting individuals who violate the law.
  2. Self-defense.
  3. Mental and physical coercion.
  4. Absolutely necessary.
  5. The Execution of an order or orders.
  6. Reasonable risk.

In addition to the above, the doctrine calls the other excluding criminality of act circumstances. Them in particular is the consent of the victim, the performance of professional duties, the implementation of subjective rights, and so on.

Entity

The Criminal-legal significance of the Institute is manifested in:

  1. The Exception of the punishment in the presence of legitimacy inbehavior.
  2. The Easing of sanctions in the Commission of an act, initially committed as excluding criminality of conduct, but did not become subsequently established in connection with the violation of the limits of legality or due to other factors (in addition to article 40, part 1 of the criminal code).
  3. The Use of punishment for illegal exceeding the boundaries of the damage.

The Latter provision applies only to some excluding criminality of act circumstances.

the circumstances excluding criminality of act applies

Traditional

The circumstances, excluding the criminality of an act, several conditions. However, most of them are included in the legislation recently. To traditional circumstances is self-defense. The researchers, analyzing the history of the creation of this Institute indicate a tendency to expand the field of its application. Necessary defense as a circumstance precluding criminality of act, for the first time mentioned in the Beginnings from 1919. Some of her objects in a limited number was used in the UK from 1922 In the Basic beginnings of 1924, the scope of the Institute was substantially expanded. In particular self-defense as a circumstance precluding criminality of act, and was associated not only with the personality of defending and other entities which play the danger. The Code was introduced by reference, and on the protection of the interests of the Soviet state, revolutionary order and power. This wording is repeated in article 13 of the Code of the RSFSR of 1926, the Current criminal code also includes the circumstances excluding criminality of act. Of the Russian Federation - a lawful state, in which the conditions for complying with the law. This task is shared by the various bodies and officials. For them the implementation of self-defense acts as the call of duty. A waiver of its execution in itself is misconduct, inviting punishment.

Mandatory conditions

Behavioral acts to protect himself or other persons, the interests of the state, may act as the circumstances excluding criminality of act, only in certain cases. Legislation formulates binding conditions, upon failure of at least one of which is the motivation of the subject ceases to be a public utility and subject to the criminal code. So, the attack must be a public threat, the real, cash. The right to protection begins with the appearance of threatening encroachment on protected interests. Defense usually occurs when there is a punishable criminal conduct of another person. For example, protection is carried out in the reflection of an attempt to commit murder, to kidnap a person, rape a woman, Rob a passer-by and so on. Cash attacks suggests the beginning or approaching the time it was committed. The attack must immediately and inevitably cause dangerous damage to society. In determining the guilt takes into account the degree of reality of the attack. The infringement must be real, not imaginary or alleged.

criminal law circumstances excluding criminality of act

Damage during the arrest of the offender

This behavior is also included in the circumstances precluding criminality. For this category establishes the conditions of legality. They are as follows:

  1. Detention must be carried out in respect of a person who committed an act falling under criminal code, not any Code. Objective evidence acts must be undisputed, clear and obvious.
  2. The Use of violence permissible only in the case of the firm belief that this subject is guilty. For example, when a person is caught red-handed at the crime scene, the witnesses will point on him, in his apartment or on his clothes shows signs of works, and so forth. As grounds for detention acts a guilty verdict or a decision about the search.
  3. Damage to the face may result only in case of real threat of evasion from punishment. About this danger can testify, for example, resistance, failure to comply with a police officer, attempting to escape, and so on.
  4. Harm may result from just implementing his detention for subsequent delivery to the appropriate authority. In this case, suppressed the ability to shirk responsibility, and the damage acts as a means of implementing this task. In the case of harm to the implementation of vigilante justice or other objectives it loses its legitimacy. In this case, the perpetrators of acts of violence are subject to punishment under the criminal code.
  5. The Measures being taken during the arrest, should be commensurate with the risk and nature of the offense and the identity of the perpetrator. For example, the loss of life of a subject who tries to escape, is considered legitimate only if he committed murder, took hostages, had a terrorist act and so on.
  6. Character taken during the detention measures shall conform to the conditions under which it is exercised. In this case the intensity and method of resistance, the number of offenders and employees of ATC, time (night/day) and the place of events, the opportunity to apply a more lenient and painless funds.

circumstancesexcluding the criminality of an act and criminal liability

The urgency

This category is in the midst of constant debate. Despite the fact that this institution has traditionally excluding criminality of act, the circumstances, the interpretation of the definition is subjected to critical assessments. First and foremost, experts point out the inappropriateness of the regulatory gap of the material and placing it not only in article 39 of the Code, and the provisions related to mental and physical coercion (article 40, part 2). In the latter case, there is no wording of any specific features of emergency, in addition to specifying the particular source of the threat. This is not the only question remaining in theory and practice unresolved. Thus, the legislation does not establish criteria for criminal-legal assessment of limit absolutely necessary.

Explanation of the definition

As absolutely necessary is considered a condition in which the aversion of threats, real to the legitimate interests of specific individuals or other entities, as well as society and the state, is causing harm to other people. This should respect the condition that in the existing situation, the danger could not be eliminated by other means and the damage is significantly less than could be in case of inactivity. In such situations excluding criminality of act the circumstances of the majority of the public. The threat that comes from those or other sources, shall:

  • Create a threat to the rights, interests of man, society, citizen, health of a person.
  • To Be cash and real.
  • To Exist in conditions when other methods not involving damage, to remove it is not possible.

Coercion

It can be mental or physical. Coercion of this kind is regulated by article 40 of this Code. This fact takes a special place among all. Forced damage to interests protected by law, in the exceptional situation was of an exculpatory nature. This explains the lack of criminal punishment, and Association with other circumstances which exclude liability. As specific features in this case is damage when paralyzed or limited free will and the lack of social utility of conduct.

the circumstances excluding criminality of act and criminal

Status Description

Article 40 covers the cases, which are considered the application or of the rules of force majeure or extreme necessity. If physical constraints the subject is not able to manage their behavior, that is, to make selective attacks, and consequently caused damage to the protected interests, the punishment cannot be applied. This is due to the fact that the person acted or was inactive under the influence of force majeure factors of force majeure. And this, in turn, provides for guilt and motivated behavior. For example, the associated guard is not able to bypass the territory entrusted to him. Mental coercion is considered to be always solvable. The reason is that regardless of the degree of intensity of exposure, the subject retained the ability to control his behavioral acts. Mental coercion can be expressed threats to use violence, to inflict a moral/material damage and other warnings that can be executed immediately. Probably also a direct effect on the mental state through psychotropic drugs, hypnosis, audio signals and others. As the goal of this compulsion is the desire to induce a person to cause harm to interests protected by law. In the case to overcome the (mental) effects, the subject chooses between threatening damage and those that require him to eliminate the existing threat. In this regard, in the consideration of acts use the rules of emergency. As typical examples there may be, in particular, the actions of the cashier, who gives money forward, threatening him with a weapon, the Directors of the banking organization, which, under torture, gives the key to the vault and so on.

Reasonable risk

It is forming a probable danger to the protected interests to achieve socially useful purpose. There should not be the possibility of obtaining such a result risk-free, by conventional means. The risk is considered to be the right person to seek, the daring (for example, in the process of development of new technologies in production, development of an innovative method of treatment and so on). The ability to carry out surveys for every citizen. It does not matter in what extreme conditions it is in. That is why in the 1996 criminal code used the term "reasonable risk". Its volume in the current Code significantly expanded. As a source, generating the probability of damages with reasonable risk, are actions of the subject, which deliberately deviates from the established and generally accepted safety requirements when it is socially useful purposes. feature of the circumstances excluding criminality of act

Termslegality

They are as follows:

  1. Damage to legally protected interests applied behavior risk, which is aimed at obtaining socially useful result.
  2. The Aim pursued by the person, can not be achieved in other, safe means.
  3. The Negative effects of risk are understood only as a possible side option for its actions.
  4. Human Behavior builds on existing skills and knowledge that is objectively capable in a particular case to prevent damage.
  5. The Entity has taken all proper, in his opinion, measures to prevent harm.

Implementation of orders/order

As a circumstance that precludes the criminality of the act, this behavior was fixed for the first time in the existing criminal code. However, in practice it is almost always taken into account in the classification of the behavior of subordinate employees, performing orders or orders of their superiors. This circumstance is considered to be universal. It applies to all cases of damage when performing the power requirements in any field of social activity.


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DE: https://tostpost.com/de/das-gesetz/2937-strafrecht-die-kriminalit-t-umst-nde.html

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KK: https://tostpost.com/kk/za/2940-ylmysty-y-rekett-ylmystyly-yn-zhoyatyn-m-n-zhaylar.html

PL: https://tostpost.com/pl/prawo/2942-prawo-karne-wyeliminowa-przest-pczo-dz-okoliczno-ci.html

PT: https://tostpost.com/pt/a-lei/2939-direito-penal-excluam-o-crime-atos-circunst-ncias.html

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UK: https://tostpost.com/uk/zakon/2941-krim-nal-ne-pravo-scho-viklyuchayut-zlochinn-st-d-yannya-obstavini.html






Alin Trodden - author of the article, editor
"Hi, I'm Alin Trodden. I write texts, read books, and look for impressions. And I'm not bad at telling you about it. I am always happy to participate in interesting projects."

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