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.
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.
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.
Recommended
Calculation and payment of sick leave
Sick Pay provided by the legislation of the Russian Federation, in particular TC and FZ No. 255. In addition, some rules are governed by the provisions of the civil code. Any employee upon the occurrence of a certain disease should contact a health f...
Employee certification for compliance with the post: purpose, procedure, result
Employers perceive the order of certification of employees as a formality. Regulations intended for commercial organizations, were not issued. Certification is required only for employees of the organizations designated in the laws of the spheres, le...
Registration of vehicle: procedure, sample application, certificate
Every person who buys a car needs to do its registration in the traffic police. It is necessary when purchasing new or used cars, as well as no matter whether the seller of natural persons or legal entities. Check the vehicle is in the traffic police...
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:
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:
The second group was included:
In the UK from 1996 to the circumstances excluding criminality of act, are:
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.
The Criminal-legal significance of the Institute is manifested in:
The Latter provision applies only to some excluding criminality of act circumstances.
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.
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.
This behavior is also included in the circumstances precluding criminality. For this category establishes the conditions of legality. They are as follows:
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.
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:
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.
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.
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.
They are as follows:
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.
Article in other languages:
DE: https://tostpost.com/de/das-gesetz/2937-strafrecht-die-kriminalit-t-umst-nde.html
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
TR: https://tostpost.com/tr/hukuk/2945-ceza-hukuku-engelleyen-su-i-ler-ko-ullar.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."
Related News
Hazard identification: basic concepts
In the production of many adverse situations, which include accidents, problems. All this endangers the life and health of people. There is such a thing as hazard identification. The term suggests the possibility of disclosure of ...
The contract for gratuitous use of non-residential premises: the form, terms, conditions
Under non-residential premises understand the isolated space of a particular building, which is not registered and not live individuals. Its purpose is the use for educational, commercial, retail and other purposes. Don't apply to...
What is autonomy? The order and level of autonomy
the Modern world is a variety of States, most of which are multinational, so there is the question of such a joint organization of people's lives that would suit all or even most. Many countries when the device powers and authorit...
Legal representative of the minor and his rights
What says the Russian law on the legal status of the legal representative of a minor? What are the legal sources contain provisions on the representatives of a child? All these and many other questions are fundamental in the area ...
The silence regime in Moscow and the Moscow region
Each of us are supposed legal right to proper rest and adequate sleep. Rules of observance of silence regime are required to fulfill all. Now, its violation will be punished by law.what are you talking About? About the normative a...
Production of documents in Russia gives a lot of trouble. In particular, if you do not know how to behave in a particular way. Today, we will be interested in the process of obtaining a passport in Tomsk. What data will help to tr...
Comments (0)
This article has no comment, be the first!