Концепция уголовном праве России

Criminal law

Concept of criminal law of Russia

Criminal law as the independent branch, naturally, represents set of homogeneous norms: And this uniformity first of all is caused by their contents. Substantially these norms сориентированы, on the one hand, on act which (it agrees to the criminal legislation existing for this period) admits a crime, and with another - on a pravoprimenitel who is obliged to estimate perfect act as criminal only according to requirements of the criminal law and on the basis of it. Besides, uniformity of norms is expressed and in their general functional orientation. Finally these norms are intended to influence relationship of people with each other, on their relations with the state (in the person of appropriate bodies) in case of commission of the criminal act; to prevent similar acts in the subsequent.

It is known that need of existence of criminal law is realized, and furthermore is perceived by not all members of society. However from it it doesn't lose the social value. Just the opposite, the criminal law would lose the main objective if was guided only by a principle of voluntariness of execution. The requirement here is impossible without the compulsory element as which guarantor the state acts. Compulsoriness of criminal rules of law should be equally applicable to all who will commit a crime. In a certain degree it caused obligatory nature of norms of criminal law.

All-obligation of criminal rules of law assumes, on the one hand, that everyone, committed a crime, is obliged to undergo influence on itself criminal liability, and with another - that the pravoprimenitel in this case is obliged (instead of has the right) to use criminal rules of law

Compulsoriness of norms of the criminal law, interfaced to their all-obligation, assumes property of a double sort: first, to protect the victim (offended), i.e. to restore or compensate his rights and the interests broken by a crime; secondly, to bring to reason the criminal (offender), i.e. to force it to a preterpevaniye of those undesirable consequences, which it should (in the line of duty, voluntary on itself assigned by the fact of commission of crime) to incur. Differently, the mechanism of criminal legal protection of interests of society from criminal encroachments is some kind of satisfaction of needs of each person and all people together in safe conditions of their life. If the right in general and criminal including doesn't satisfy these requirements (irrespective of the reasons), it as the social regulator loses the moral and actual positions and loses prestige among the population, turning into a ballast. The satisfaction of the specified requirements as though connects criminal law to the vivifying social sources feeding and confirming him as necessary and rather effective state and legal regulator of human relations.

Independence of criminal law doesn't suffer from that it appears included in system of other public regulators. Only in their cumulative interaction the criminal law also can show the independence. Out of system it becomes an ominous appendage of criminal and legal elements. Autonomy of criminal law allows to establish set of signs by means of which this or that blamed act admits criminal that threatens normal development or even existence of this or that sphere of human social or state being, i.e. becomes socially dangerous

Any encroachment on the subject of the public relations which morally approved and have been standardly settled, represents a certain danger. However character and degree of this danger can be various. Respectively forms of official reaction should be adequate to danger of such encroachment. In one cases the state (legislator) is limited to measures for recovery of the broken legitimate rights of the victim if it is a question of violation of its property rights capable to restoration (civil-law influence); in others to the violator measures of disciplinary or administrative influence can be applied. At more dangerous encroachments the criminal and legal instructions assuming criminal liability operate.

Proceeding from stated, it is possible to make the conclusion that the criminal law establishes first of all the basis and limits of criminal liability for those acts which admit crimes, and provides application possibility to guilty a certain punishment. The drawn conclusion brings to a logic conclusion that the criminal law regulates also release cases (in the presence of the lawful bases on that) from criminal liability

Indisputable the statement in this regard is that norms of criminal law are established only by the state in the person of its legislature.

Thus, the criminal law is the independent branch of uniform legal system representing set of homogeneous norms of the supreme body of the government which contain the description of the signs allowing a pravoprimenitel to recognize act by a crime, and define the basis and limits of criminal liability, and equally in a condition of release from criminal liability and punishment.

Functions of criminal law, subject and method of criminal and legal regulation

The social values created by centuries-old activity of people, criminal law (in commonwealth with other social and legal regulators) protects from potential (possible) criminals and criminal encroachments. Such is guarding function.

The criminal law is turned by the positive, social and valuable properties first of all to honest, normoposlushny citizens, inducing them to join in difficult, but necessary for development of the personality, society and the state the guarding mechanism. Than the bigger number of people is involved in its orbit, that smaller specific weight should have in it a criminal and legal regulator. In this regard one of the main tasks of criminal law in the sphere of action of guarding function is fight against criminal psychology, ideology of the criminal world and a criminal way of life.

The criminal law first of all turns retaliatory, repressive properties to the one who made (or tried to commit) a crime, aspiring to localize all force of the compulsory charge, and in the subsequent to destroy the deviating (abnormal) relation which has resulted it. An ultimate goal of criminal law in this plan is "replacement" of the similar relations from public life. The frightening attributes which are inevitably accompanying process of realization of retaliatory Hugo-lovno-legal institutes (the truth, with various extent of influence), сориентированы on all (including on those who already committed a crime) subjects of the public relations on purpose to keep them from criminal behavior (including in the future). The main sense of regulatory function also consists in it. Operatively reacting to a perfect crime, norms of criminal law thereby prevent approach of more destructive (often irreplaceable) harm to socially significant interests of people, as though anticipating possible criminal encroachments. At this stage regulatory function is transformed to the guarding. It is possible to tell that regulatory function is an active (active) form of protection of subjects of the public relations, it is necessary being shown in extreme (criminal) situations.

If figuratively to present set of the public relations which are subject to protection by criminal and legal means, in the form of a huge warehouse, criminal law, on well-aimed expression M.I.Kovalyova, it is possible to present as the watchman (sentry), ready to reflect any invasion on object protected by it. The watchman (hour) - very primitive model of one of the main functions of criminal law, though quite precisely reflects its essence.

Both functions of criminal law are possible, besides figuratively, to present as oven zaslonka, on the one hand which is that is so necessary and consequently is subject to protection (protection) - light, heat, a cosiness. From other its party that is harmful and even dangerously and owing to this fact is subject to replacement (elimination) - a smoke, ashes, a soot, a stench etc.

It is natural that the specified functions are inadequate from the point of view of conditionally expected social result of their realization. One of them (regulatory) solves first of all tactical problems, other (guarding) is calculated on distant prospect. However, operating together, vzaimoobuslovlenno and vzaimoproniknovenno, they make an essence of the mechanism of criminal and legal regulation.

Proceeding from a general-theoretical postulate formation of separate branches of the right can be proved and furthermore to explain first of all specifics of a subject of regulation. It is known that as a subject of legal regulation the social relations act. To establish a subject of direct criminal and legal regulation - means to allocate group of the public relations, differing (qualitatively) certain unity. At the same time it would be incorrect to think that the specified relations are homogeneous in all the manifestations. Isolation of regulation by norms of one branch of the right non-uniform or not completely homogeneous public relations is caused by their complexity and variety, close, and at times and indissoluble interrelation. Just as the sunlight consists of light waves of various length that defines various colors of a light range, the right including criminal, regulates set various on the social importance and shades of the maintenance of public relations.

The relations regulated by criminal rules of law, organically break up to two ambiguous groups in social and valuable perception: on the relations necessary, positive, and therefore also socially useful and the relations deviating, negative and owing to this fact the socially harmful. If the first group of the relations (in which all society or the vast majority of his representatives is interested) it is necessary it is protected it (is protected), along with the criminal law, all set of moral, social and legal regulators, the second group (interest it is criminal the adjusted people) causes need of imperious (compulsory) intervention of the state by application of criminal and legal influence. The specified groups as a result of their legal registration get the status of legal relationship, including the criminal.

So, opening an essence of a subject of criminal and legal regulation, it is possible to allocate two main and consequently universal behavioural spheres of human life in which norms of criminal law actively function:

а) the sphere of lawful behavior of citizens on infliction of harm in the presence of the circumstances excluding crime of act (necessary defense, emergency, detention of the criminal, reasonable risk etc.) ; б) the criminal behavior interfaced to commission of socially dangerous encroachment. A binding component of these spheres is the deviating (abnormal) relation testifying to existence of the social conflict, generated by the criminal act of one of the parties of these relations. This deviating relation also is a subject of criminal and legal regulation for only existence of this look human relations removes the safety starting arrangement always the criminal and legal regulatory mechanism which was in increased readiness. With disappearance (elimination) of the deviating relation regulatory function gives way to function guarding which (unlike regulatory function) has no stops. She acts continuously from coming into force of the relevant criminal law and before its complete cancellation.

The given allows to draw a conclusion that criminal law soriyentirovano on two subjects. The first - protection of the most important for society of the relations irrespective of the sphere of human activity (production, administrative, property, spiritual etc.). The fact of commission of crime is a legislative basis for emergence of the special relations between the criminal and the victim which interests are represented by the state in the person of its law-enforcement bodies. The maintenance of the second subject just also is made by the deviating (abnormal) relations contradicting interests not only certain citizens, but also society as a whole.

In the theory the opinion according to which branches of the right differ not only in a subject, but also a method of legal regulation strongly dominates. It is known that the method is defined by specifics of a subject and consequently represents itself as the secondary. It is possible to conclude that it as a litmus piece of paper reveals features of a subject of regulation. Being indissoluble, the subject and a method differ functionally. If the first answers a question, what public relations should be regulated by norms of criminal law, the second shows, how

Problems of criminal and legal regulation

Specifics and the maintenance of criminal law are caused by the tasks facing this branch of the right. Social value of criminal law consists first of all in protection of the public relations, namely: the world and safety of mankind, the personality, its rights and freedoms, a property, environment, public and state interests and all law and order from criminal encroachments. For implementation of these tasks the criminal law and the legislation establish the basis and limits of criminal liability, define, what dangerous to the personality, societies and the states of act admit crimes, and fix types of punishment and other measures of criminal and legal influence. Differently, the criminal law solves the specified tasks on the basis of realization of guarding and regulatory functions. If to start with social purpose of criminal law, it will appear that society and the state to it assign a problem of protection of all system of the public relations from criminal encroachments. At the same time from whom are protected the public relations, can't be considered by extraneous (derelicts) for these relations people. They are carriers, participants, and quite often active creators of these relations. Therefore the criminal law not only protects the public relations from criminal encroachments, but also influences consciousness and behavior of the subjects entering these relations.

Thanks to a guarding and regulatory role the criminal law (in a g complex '^/гими factors of spiritual, economic, political and ideological character) carries out also a task of the prevention (preventsiya) of crimes, eliminations of the reasons generating crime. Preventsy of crimes criminal and legal means should be considered in two aspects: first, from the point of view of the general prevention under the influence of a criminal legal mechanism and, secondly, from the point of view of private prevention by criminal and legal impact on the persons who have committed crimes. From here it is obvious that the preventsiya is the back of a guarding task.

In other words, norms of criminal law carry out guarding, preventive and educational tasks first of all demonstration of the existence. However would be illusion to believe that frightening effect the norm (including criminal law) which application represents only abstract possibility possesses. Themis, according to the remark M.I.Kovalyova, shouldn't act in an image of the ailing old woman, which only and can what to shake finger at the disobedient great-grandson, sentencing thus: "Ah you, the wretch, look at me!" . The norm of criminal law incapable in limits of "the competence" to resolve the criminal conflict, reminds a short-haired hedgehog who всяк can kick even with a bare foot. Justice is obliged to use all arsenal of the means for fight against crimes, only in this case it will adequately execute the main social functions. However the retaliatory sting of the criminal law should strike guilty, each time being based on strict observance of the principles promoting construction of criminal law on an authoritative Olympus of social regulators of public life.

It is natural that social and valuable possibilities of criminal law aren't boundless, they have the reasonable restrictions. Whatever perfect was the system of criminal law and its separate divisions, it unable to eradicate those reasons of crime which are outside the limits of criminal and legal space. It is possible to tell that only one thousand share of life is subject to the criminal law, other part occurs, out of it. Therefore the progressive mankind developed a golden rule: the most economical, however the most effective way of fight against criminal and other antisocial offenses is their early prevention, and she, in turn, demands daily care of increase of material welfare of people, growth of their cultural level and consciousness, legal and moral education.

Principles of criminal and legal regulation

The criminal law only then carries out the main social and moral and organizational and legal mission when is guided by the principles developed by centuries-old worldly wisdom of hundred previous generations. Obviously, the following basic principles are inherent in criminal law.

Principle of legality which follows from provisions of the Universal declaration of human rights: nobody can be recognized guilty of commission of crime and will inflict to criminal punishment differently as on a sentence of court and according to the law. Besides, the principle of legality is shown that the person can be condemned only for that act made by it which comprises the structure of a crime provided by the criminal law. Further, the principle of legality demands application to it only that punishment which is provided by the criminal law for this crime. And, at last, to release from criminal liability (punishment) it is possible only in the presence of the bases and the conditions specified in the law.

Principle of equality of citizens before the criminal law. The criminal is subject to criminal liability irrespective of a floor, race, a nationality, language, an origin, property and official capacity, a residence, the relation to religion, belief, belonging to public associations, and also other circumstances. Probably only one basis of criminal responsibility - existence in the committed act of signs of concrete structure of a crime. To all persons who have committed an identical crime, one criminal law should be applied. At the same time before the criminal law social equality should precede equality of all.

The principle of inevitability of criminal liability is that the person who has committed a crime, is subject to punishment in a criminal legal order. It is necessary to understand as the last and timely involvement of the criminal to responsibility, and that before the criminal law anybody shouldn't have no privileges. If the crime is committed, guilty should incur fair punishment independently from any circumstances. In criminal and legal space of the state shouldn't be "elite" (including deputy) zones, and everyone who will commit a crime, should understand that the fair and severe penalty is inevitable for it.

The principle of an individual responsibility finds the expression that the person answers only that it made (created), and action of this principle doesn't contradict criminal liability at partnership in the presence of which all guilty bear criminal liability for in common and in coordination committed crime is solidary". The individual can bear criminal liability only.

The principle of guilty responsibility means that the person answers only for act and its consequences caused by it is deliberate or on imprudence.

The principle of justice means that criminal punishment or other measure of the criminal and legal influence, applied to the criminal, should correspond to weight of a crime, degree of his fault and the personal properties shown in criminal action made by it. Justice in criminal law - "criminal and legal harmony", - almost never happens harmony actual as the legislator at establishment of sanctions for act is guided by political, ideological, material, moral reasons, i.e. first of all reasons utilitarian See. I.Kovalev). The specified principle should be understood and in the sense that nobody can bear twice criminal liability for the same crime.

The democratism principle, though not in full, is shown in criminal law in various forms of participation of representatives of public associations and individuals at purpose of the criminal sanction, its execution and, in particular, at release from criminal liability and punishment.

The essence of a principle of humanity consists in recognition of value of the person (however not only the criminal, but also first of all the one who suffered from it). In particular, it is expressed that the criminal measure attracting essential infringement of legal status condemned, pursues the unique aim - to protect interests of other, right obedient citizens, from criminal encroachments. With a view of positive influence on guilty to it minimum necessary measure of criminal punishment should be applied. From these positions it is necessary to recognize quite humane situation according to which doesn't attract criminal liability act which though formally and comprises signs of structure of a crime, but on the insignificance isn't socially dangerous.

List of references

1. Traynin A. N. The general doctrine about crime structure. M, 1957.

2. Kruglikov L. L. Circumstances softening and aggravating responsibility in criminal law. Voronezh, 1985.

3. Kruglikov L. L., Savinov V. N. Qualifying circumstances: concept, types, influence on qualification of crimes. Yaroslavl, 1989.

4. Kostareva T. A. Qualifying circumstances in criminal law. Yaroslavl, 1993.

5. Kozachenko I. Ya., Kostareva T. A., Kruglikov L. L. Crimes with the qualified structures and their Hugo-lovno-legal assessment. Yekaterinburg, 1994.

6. Kudryavtsev V. N. General theory of qualification of crimes. M, 1972.

7. Chicken B. And. Scientific bases of qualification of crimes. M, 1984.

8. Burchak F. G. Qualification of crimes. Kiev, 1983.