The corpus delicti in the criminal law of the Republic of Kazakhstan is brief. Elements and signs of a crime. Only insofar as I manifest myself, insofar as I enter the realm of reality, do I enter the sphere subject to the legislator. In addition to my actions, I have completely

The corpus delicti is a set of impartial and subjective characteristics enshrined in the criminal law, which together define a socially dangerous action as a crime. The elements of an offense are strengthened in the norms of the general and special parts of criminal law. They can be conditionally divided into 4 subsystems: signs of the object, subject, impartial and subjective side of the offense.

The presence in action of all the signs of a certain offense is the basis for declaring it lawless and bringing the person who committed it to criminal liability; the absence of at least one of them means that the elements of the offense as a whole are missing, and the action is recognized as non-criminal

The basis for bringing the person who committed this action to criminal liability. According to Article 3 of the Criminal Code of the Republic of Kazakhstan, “the only basis for criminal liability is the commission of an offense, that is, there is an action containing all the symptoms of the offense provided for by the Criminal Code of the Republic of Kazakhstan.”

A crime is recognized as such not in itself, but through comparison with those signs of the corresponding elements of the offense, which were enshrined in the criminal law norm.

The set of impartial and subjective characteristics established by criminal legislation that describe a specific socially dangerous action as a crime is usually referred to in criminal law as the corpus delicti.

Crime and elements of an offense are similar, but not similar opinions. A crime is a specific action or inaction committed by a specific person in an impartial reality and characterized by almost all purely personal characteristics. The corpus delicti is a normative category that establishes only the usual symptoms of some unlawful action.

This makes the meaning of the offense clear. If a crime, or rather its execution, is the actual basis of criminal liability, then the composition of the offense is its legal basis.

These 2 grounds are interconnected and, in essence, constitute one whole: without a legally established corpus delicti, a socially dangerous action cannot exist and is recognized as an offence, but the presence criminal law, providing for the signs of any offense, is not the basis for criminal liability if the person has not committed an action falling under these signs.

Therefore, in general, in accordance with the already cited Article 3 of the Criminal Code of the Republic of Kazakhstan, both the decision maker, the concept, and the practice recognize the performance of a socially risky action containing all the signs of an offense provided for by criminal law. This means that no other incidents (data describing the personality of this or that subject, the socio-political resonance of an impeccable action, etc.) have a chance of being the basis for criminal liability.

In the absence of such a basis, there can be no talk of criminal liability, and if criminal prosecution, despite the lack of corpus delicti in the person’s actions, was started, then it must be terminated at any stage of the criminal process, as soon as the lack of corpus delicti is found.

The legal literature correctly states that the performance of an action containing all the symptoms of an offense is not only a single, but also a sufficient basis for criminal liability, i.e. To bring someone to criminal liability, it is enough for the body executing criminal prosecution to determine the presence of elements of an offense in the action.

All other incidents do not need to be identified to resolve the issue of criminal liability. Obviously, it does not follow from this that the body executing criminal prosecution is not obliged to find out the remaining incidents of the case. For example, the same data describing the personality of the perpetrator, behavior preceding the commission of the offense, etc. All this makes sense for the case and can be taken into account by the tribunal when assigning punishment, but does not act as a basis for criminal liability.

Thus, without the corpus delicti, criminal liability cannot be implemented. Along with this most important, core role, the elements of the offense are determined by the rest; it is allowed to call them “official”, but very necessary tasks. Only on the basis of the corpus delicti can the process of qualifying an offense be realized, because it acts as the necessary criminal legal prototype (sample), by comparing with which the law enforcement officer selects an appropriate criminal legal norm, which more accurately and literally reflects the table of contents and characteristics of an impeccable offense.

The problem of qualifying an offense is one of the more difficult and important in criminal law, not only in theoretical, but also in practical terms, because the effectiveness of the criminal law and the fate of a person depend on how this or that action is qualified. to which this law is applied.

The term “qualification” comes from two Latin words: “gualis” - property and “facere” - to do. When applied to criminal law, this means giving a benign assessment of a socially risky action, allowing it to be distinguished from related torts. In other words, the qualification of an offense is understood as the introduction and legal consolidation of a clear correspondence of the actual signs of an impeccable action with the signs of a specific offense provided for by the criminal law norm.

The signs of an offense are described not only in the dispositions of the articles of the Special Part of the Criminal Code of the Republic of Kazakhstan; a large part of the signs of this or that offense are described. Signs that are common to all offenses or to a separate group of offenses are traditionally named in the articles of the General Part of the Criminal Code of the Republic of Kazakhstan (forms of guilt, age at which responsibility begins, unfinished lawless activity, complicity, etc.).

Thus, the disposition of Article 96 of the Criminal Code of the Russian Federation, which provides for liability for murder, does not specify the age at which the person who committed the murder is subject to criminal liability. This information is contained in Article 15 of the General Share of the Criminal Code of the Republic of Kazakhstan. The articles of the Special Part of the Criminal Code of the Republic of Kazakhstan traditionally contain elements of completed offenses or absolute ones specifically by the perpetrator.

When there is preliminary criminal activity or the activity of an accomplice (accomplice, instigator), then, at first glance, the act does not contain all the symptoms of this or that offense specified in the relevant article of the Special Part of the Criminal Code of the Republic of Kazakhstan. But the corpus delicti is also available in these variants, however, it is constructed by indicating the features contained not only in the article of the Special Part, but also in the corresponding articles of the General Part.

When qualifying a crime, the article of the Special Part of the Criminal Code of the Republic of Kazakhstan or its part that contains the corpus delicti corresponding to the given act must be accurately indicated, and in cases of unfinished criminal activity, complicity, which will be discussed in more detail below 1, a reference must also be made to the corresponding articles of the General parts of the Criminal Code of the Republic of Kazakhstan. The results of the qualification of a crime are reflected in procedural documents (decrees to initiate a criminal case, charge as an accused, sentence, etc.).

The meaning of the qualification of an offense is that it officially strengthens the presence of a legal fact (the performance of a socially risky action containing all the symptoms of an offense), which “turns on” a device that implements the regulatory function of criminal law in the guise of bringing the person guilty of committing an offense to criminal charges. responsibility.

From here it is clear how fundamentally correct the classification of an offense is, which is guaranteed by a clear socio-legal analysis of the signs of an impeccable socially risky action. In order to correctly determine the action, it is necessary to use the criminal law, it is necessary to have an excellent knowledge of the actual incidents of the case, as well as the elements of the composition that delimit the lawless from the non-criminal, one crime from another. Ultimately, the position of legality in society largely depends on how correctly law enforcement agencies classify offenses.

1. Concept and signs of a crime

2. Classification of crimes

Minor crime

Moderate crimes

Serious crimes

Particularly serious crimes

3. Crime and other offenses 1. Concept and signs of crime

Crime is the most important category of criminal law. All other concepts and categories of criminal law are related to crime.

The science of criminal law considers crime not as an abstract category, unchangeable, given once and for all, not dependent on anything, but as a real social category, closely related to others that determine its appearance and existence. social phenomena. Considering crime in this way, the science of criminal law establishes that crime is a historically variable category that has not always existed, but arose at a certain stage in the development of human society: with the social division of labor, the formation of private property, the division of society into classes, with the advent of the state and law .

Human behavior that causes significant harm and violates public relations in the state is recognized as criminal.

In the era of the primitive communal system, when there was no state and law, there was no concept of crime or punishment. If any excesses or actions were committed that were harmful, dangerous for the clan, tribe, or individual, then they were fought through the use of coercive measures emanating from the clan, tribe, for example, expulsion from the clan, tribe, deprivation of peace, deprivation of water.

The concept of criminality and its content changed with the change in socio-economic formations, but its social essence, which is determined by the social danger to existing social relations protected by criminal law, remained unchanged.

The definition of a crime is given in Article 9 of the Criminal Code of the Republic of Kazakhstan: “A crime is a socially dangerous act (action or inaction) committed guilty of guilt, prohibited by this Code under threat of punishment.”

The crime is characterized by a number of mandatory features:

the law includes the social danger of an act, its illegality, guilt and punishability. Only the presence of such signs in aggregate characterizes the offense as a crime.

The main and main feature of a crime is its social danger.

This is the objective property of an act (action and inaction) provided for by criminal law that actually causes significant harm to social benefits protected by criminal law or contains a real possibility of causing such harm. Social danger is the main and main sign of a crime because this sign is the basis of the criminal, the basis of criminalization, it serves as a criterion for classifying an act as a criminal offense, that is, a crime. If an act does not contain a significant degree of public danger, then it cannot be considered a crime. The degree of public danger of acts recognized as crimes is higher and more significant than when committing, for example, administrative offenses.

An increased degree of public danger is expressed by such a feature as the infliction or creation of the possibility of an act causing significant harm to objects protected by criminal law. The significance of the harm, in other words, the social danger, is directly indicated when characterizing individual crimes. For example, acts such as abuse official position(Article 304), arbitrariness (Article 324), obstruction of the activities of public associations (Article 150) are recognized as crimes if this entailed a significant violation of the rights and legitimate interests of citizens and organizations or legally protected interests of society or the state.

An indication of a sign of public danger is contained, first of all, in the very definition of the concept of a crime (Article 9 of the Criminal Code); the nature and degree of public danger are the basis for the categorization of crimes (Article 10 of the Criminal Code). This most important feature is directly indicated in other articles of the Criminal Code: Article 2 (tasks of criminal legislation), Article 20 (committing a crime intentionally), Article 21 (committing a crime through negligence).

The social essence of a crime lies in its social danger to the interests (objects) protected by criminal law.

The social danger of a crime is due to the fact that, as stated in Article 2 of the Criminal Code, which defines the tasks of criminal legislation, such acts cause significant harm or create a threat of harm to the most important objects of criminal legal protection: the individual, his rights and freedoms, the constitutional order, political and economic independence of the Republic of Kazakhstan, law and order and security of society, property, and the natural environment. The list of objects of criminal legal protection is specified in the articles of the Special Part of the Criminal Code.

The criminal law distinguishes between qualitative (nature of public danger) and quantitative (degree of public danger) sides in public danger.

The degree of public danger expresses the comparative danger of acts of the same nature. According to the nature and degree of public danger, acts are divided into crimes of minor gravity, crimes of medium gravity, serious crimes and especially serious crimes (Article 10 of the Criminal Code). The nature and degree of public danger of the crime are taken into account when assigning punishment (Article 52 of the Criminal Code).

Social danger is determined by all the signs of a crime: the object of the crime, the criminal consequences, the method of committing the crime, the form and type of guilt, the motive and purpose of the crime, the time, place, and circumstances of its commission."

A crime is an act that causes harm or creates a threat of causing significant harm to law enforcement interests, that is, the object of the crime. Therefore, social danger is determined primarily by the object of the crime: its importance, social value. The more important the object of the attack, the greater the harm caused to it, the greater the degree of social danger of the act. Crimes against the sovereignty of the Republic of Kazakhstan are more dangerous compared to, for example, malfeasance, since the sovereignty of the Republic of Kazakhstan as an object of encroachment is of greater social significance.

Murder is considered a more serious crime than bodily injury, since human life (the object of murder) is a more valuable good in comparison with health (the object of bodily injury).

Along with the object, social danger is largely expressed by the consequences of the crime directly related to the object of the crime.

The law differentiates liability depending on the nature and severity of the consequences (large size, grave consequences, especially grave consequences, etc.).

Criminal liability according to Kazakh criminal law, can only take place if there is a basis specified in Art. 3 of the Criminal Code, which states: “The only basis for criminal liability is the commission of a crime, that is, an act containing all the elements of a crime provided for by this Code. No one can be re-criminalized for the same crime.”

Thus, the law recognizes as the basis for criminal liability a certain act of human behavior that contains elements of a crime provided for by a specific criminal law norm. The Criminal Code of the Republic of Kazakhstan in the norms of the Special Part determines which socially dangerous acts are criminal by describing their specific characteristics. To bring a person to criminal responsibility and find him guilty, it is necessary to establish signs of a crime in the socially dangerous actions he has committed. A person is brought to criminal liability not because he appears dangerous to the investigator, prosecutor and court, but because he committed an act in which there are signs of a crime established in the criminal law. In the science of criminal law, the totality of such signs is usually called the corpus delicti.

Criminal Code of Kazakh. The 1959 SSR did not include the term “corpus delicti” in the norm provided for in Art. 3 of the Criminal Code “Grounds of criminal liability”, although, in essence, this is exactly what the article was about. The term “corpus delicti” was used by the legislator in other articles of the General Part of the Criminal Code (For example, in Article 16 of the Criminal Code “Voluntary refusal to commit a crime”). This was the reason for the controversial solution to the problem of criminal liability in the science of criminal law, which was reflected in all published textbooks on the General Part of Criminal Law.

Most scientists previously, before the adoption of the Criminal Code of 1997, believed that the only basis for criminal liability is the corpus delicti. Some authors recognized as grounds for criminal liability, in addition to the composition, other circumstances, for example, the public danger of the act committed, personal qualities subject. Other authors believed that two grounds should be kept in mind: objective - the act and subjective - guilt, motive. A detailed analysis of all points of view on this issue is given in the Course of Soviet Criminal Law (M., Nauka, 1970. Volume 11, pp. 88-89,129, etc.), as well as in the monograph by M.P. Karpushin, V.I. Kurlyandsky. “Criminal liability and corpus delicti.” M., 1974, pp. 183-200. Some scientists spoke in favor of two grounds for criminal liability, but distinguished them according to other criteria: the corpus delicti as a legal abstraction and the crime itself as material basis. It seems that the latest understanding of the problem of the grounds of criminal liability, in principle, deserves attention, but needs some clarification.

The doctrine of corpus delicti was further developed in Russian and Soviet criminal law. At the same time, controversial issues continue to remain. In particular, even the question of the actual content of the concept of “corpus delicti” is controversial. There are two main approaches to its definition.

Thus, the law had in mind two grounds for criminal liability: factual - the presence of a socially dangerous act (an act of human behavior) and legal - the presence of elements of a crime in this socially dangerous act of a person. These two grounds are inseparable, because together they form a single concept - crime. Therefore, it was natural to combine them into a single basis for criminal liability in Article 3 of the Criminal Code of the Republic of Kazakhstan in 1997.

So, a socially dangerous act committed by a person in reality will be recognized as a crime if it contains the corpus delicti described in the Special Part of the Criminal Code. The Criminal Code of the Republic of Kazakhstan contains an exhaustive list of crimes. The justice authorities cannot, at their discretion, bring a person to criminal liability for committing an act that, although posing an obvious danger to society, is not specified as a crime in the Special Part of the Criminal Code. Application of criminal law by analogy is not allowed (Article 9 of the Criminal Code of the Republic of Kazakhstan 1997).

A socially dangerous act of a person is a reality, and the composition is a legal concept of it as a crime, which is given in the disposition of the criminal law norm. For example, in Art. 165 of the Criminal Code contains signs of high treason, Art. 257 of the Criminal Code - hooliganism, in Art. 175 of the Criminal Code - theft of other people's property. A person may be held criminally liable for committing crimes under these articles of the Criminal Code if signs of treason are established in the actions actually committed by him (espionage, giving out state secrets or otherwise providing assistance to a foreign state, foreign organization or their representatives in carrying out hostile activities against the Republic of Kazakhstan, committed by a citizen of the Republic of Kazakhstan) or hooliganism (a particularly daring violation of public order, expressing clear disrespect for society, accompanied by the use of violence against citizens or the threat of its use, as well as destruction or damage to someone else’s property), or theft (secret theft of someone else’s property , i.e. unlawful gratuitous seizure and circulation of someone else’s property in favor of the perpetrator or other persons, committed for mercenary purposes and causing damage to the owner or other holder of this property). The absence of at least one of the listed features of these elements means the absence of the entire corpus delicti, and, therefore, the act committed by the person is not a crime. The compositions themselves, fixed in Articles 165, 257 and 175 of the Criminal Code, cannot be the only and sufficient basis for criminal liability, as is quite often interpreted in the science of criminal law. There are rules on liability for high treason, hooliganism, and theft, but real criminal liability does not occur until a person has acted. Criminal liability is actually generated only by a person’s act that contains elements of a crime. Thus, neither the corpus delicti as a scientific abstraction, but the action or inaction of a person, in which there are signs of a specific corpus delicti, are the basis for criminal liability for this crime.

According to clause 2, part 1 of Art. 37 of the Criminal Procedure Code of the Republic of Kazakhstan, a criminal case cannot be initiated, and the case initiated is subject to termination if the act does not contain a crime. The legal (legal) assessment of an act as a crime is made by describing in a specific norm of criminal law mandatory, legally significant, i.e. the most common and significant signs of encroachments of this type. From a variety of individual traits, for example, many murders, the legislator selects the most significant characteristics and creates, as it were, a model of a crime of this type. The legislator considered the most typical (constantly occurring) signs of murder to be the nature of guilt and socially dangerous consequences in the form of death. Murder is most often committed by an act that impairs the function or anatomical integrity of another person's vital organs, resulting in death. The legislator did not consider other characteristics significant, for example, the location of the crime (street, institution, apartment), time (day, evening, night), specific characteristics of the victim (his gender, age, lifestyle), individual characteristics of the offender (gender: men and women , an experienced criminal-killer or a first-time murderer), etc. As a result of such selection, a generalized concept of murder is created. From the moment they are fixed in the law, the selected signs become signs of a crime, and the encroachment itself is recognized as a crime under Articles 96-100 of the Criminal Code. (of course, in the presence of other essential features of the compositions under Part 2 of Article 96 and Articles 97-100 of the Criminal Code). Consequently, a specific corpus delicti represents a minimum set of necessary features specified in a specific norm of the Special Part of the Criminal Code, in the presence of which in the act of a person the law establishes the possibility of bringing him to criminal liability.

Based on the characteristics of specific crimes, the theory of criminal law created general concept corpus delicti. It contains in a generalized form the characteristics of all specific elements of crimes provided for A special part UK.

The corpus delicti is a set of mandatory objective and subjective characteristics established by law that characterize a socially dangerous act as a crime Criminal law Kazakhstan. (General part) Textbook for Universities / ed. Doctor of Law, Professor I.I. Rogov and candidate of legal sciences, associate professor S.M. Rakhmetova _ - Almaty, Baspa LLP, 1998. - p. 40; Criminal law of the Republic of Kazakhstan General part. 2nd ed. corr. and additional - Almaty: Zheti zhar?y 2003, p. 56..

The crime consists of four elements:

Object of crime.

The objective side of the crime.

Subject of the crime.

The subjective side of the crime.

The specific corpus delicti is a set of mandatory features with the help of which the legislator, in a specific norm of the Special Part of the Criminal Code, establishes not only criminality, but also the punishability of the act, i.e. indicates what punishments and to what extent may be imposed by the court for this crime. It should be borne in mind that only the court, and not any other government bodies or officials, can establish a person’s guilt in committing a crime and assign criminal punishment or other criminal legal measures. This fundamental provision is established in Part 3, Clause 1, Art. 77 of the Constitution of the Republic of Kazakhstan, according to which: “A person is considered innocent of committing a crime until his guilt is recognized by a court verdict that has entered into legal force.”

The choice by the court of the type and term of punishment in relation to the person who committed the crime depends on the correct qualification under a certain part of a specific article of the Criminal Code. The slightest deviation from this principle will lead to a violation of the rule of law and arbitrariness, derogation of the rights and freedoms of man and citizen. One of the foundations of the constitutional system of the Republic of Kazakhstan is the recognition of man, his rights and freedoms as the highest value, and the observance and protection of the rights and freedoms of man and citizen - most important responsibility state (Article 1 of the Constitution of the Republic of Kazakhstan). Judicial protection rights and freedoms are guaranteed to everyone, including a person accused of committing a crime.

Thus, the significance of the corpus delicti lies in the fact that it is: a) the legal basis of criminal liability; b) the condition of correct qualification; c) the basis for the court to determine the type and amount of punishment or other measure of a criminal law nature; d) guaranteeing the rights and freedoms of man and citizen, and also contributes to the observance and strengthening of law and order.

Topic 4. Composition of the crime

Crime as a basis for criminal liability. Conditions of criminal liability.
The concept of corpus delicti.
Types of crimes.
Correlation between the concepts of crime and corpus delicti.
The concept of qualification of crimes.

1. Crime as a basis for criminal liability. Conditions of criminal liability.

The only basis for criminal liability is the commission of a crime. In accordance with Art. 10 of the Criminal Code a crime can be committed in the form of:

- preparations to commit a crime;

- attempted crime;

- complicity in the commission of a crime.

However, not all actions that formally fall under the elements of a crime entail criminal liability. In order for the commission of a crime to entail criminal liability, several conditions must be present. These include the person reaching the age of criminal responsibility, the person’s sanity, in some cases the presence of the victim’s demand to bring the perpetrator to criminal responsibility, as well as administrative (disciplinary) prejudice.

The conditions of liability that characterize the person who committed the crime, that is, age and sanity, will be discussed in the topic “Subject of the crime.”

Administrative or disciplinary prejudice means that the possibility of criminal liability is associated with whether the perpetrator has previously committed administrative or disciplinary offenses. The commission of two similar administrative (disciplinary) offenses within a year leads to the recognition of these actions as a crime (Article 32 of the Criminal Code). This procedure is provided, for example, by Art. 272 of the Criminal Code (pollution or clogging of water) and a number of other crimes.

The presence of administrative and disciplinary prejudice in the Criminal Code is not indisputable, since it is not consistent with such a sign of a crime as public danger. On the one hand, not every administrative violation, when repeated, develops into a crime. For example, crossing the street in an unintended place any number of times will not become a crime. On the other hand, if one offense is not a crime due to the absence of a social danger of the act, then a second similar offense cannot be a crime. The institution of administrative (disciplinary) prejudice and its justification require in-depth analysis.

Criminal law and criminal procedure assume that the prosecution of a criminal is carried out on behalf of the state. State prosecution therefore has a public (public) character. But in special cases The decision on whether to prosecute the criminal or not is left to the victim. Such cases are called cases of private and private-public prosecution.

For acts entailing criminal liability only at the request of the victim, included such crimes as minor bodily injury, rape, destruction and damage to property and a number of other crimes, full list which are given in Art. 33 of the Criminal Code. The note to Chapter 24 (Property Crimes) states that criminal prosecution close relatives for some forms of theft is also possible only at the request of the victim.

Sometimes the prosecutor has the right to initiate criminal prosecution in cases of private prosecution, for example, if the victim is unable to independently, due to illness or other reasons, exercise his right to prosecute the criminal within the framework of criminal proceedings.

It should be noted that in the Criminal Code of 1999 the list of private prosecution cases has been significantly expanded compared to previous legislation. However, there is an opportunity to further expand the dependence of criminal prosecution on the opinion of the victim by including careless crimes and crimes that do not pose a great public danger in the list of private prosecution cases. This will contribute to greater protection of both the rights of the victim and the rights of the person who caused the harm, and, consequently, the implementation of the objectives of criminal law.

2. The concept of corpus delicti.

The concept of corpus delicti is absent in the Criminal Code; this concept is a scientific development, a scientific abstraction. In science under composition crimes understand the totality of elements and characteristics that characterize an act as criminal.

Despite the fact that the articles of the Special Part of the Criminal Code sometimes differ significantly in their wording, it is possible to identify typical, general features inherent in each crime, regardless of the content of the disposition of the article and regardless of the factual circumstances inherent in a particular crime. Such a formalized model of crime allows one to study any act based on the same approach and draw a conclusion about the criminality or non-criminality of the act. A unified scheme for studying various crimes makes it possible to compare them, group crimes according to similar characteristics, and separate outwardly similar crimes from each other.

The role of the corpus delicti is extremely important for ensuring the rule of law in criminal proceedings. It is impossible to bring to criminal liability if there are no signs of a crime in a person’s actions. For example, as already mentioned, criminal liability cannot arise on the basis of a “criminal state of the individual,” which allegedly indicates a person’s propensity to commit crimes or the danger of his free existence in society due to social origin, nationality, previous criminal record, etc. d. The presence of harm from a certain act also does not in itself entail criminal liability, no matter how significant this harm may be. Analysis of the elements of a crime allows, by delimiting crimes, to accuse the criminal of precisely the violation that he committed. At the same time, such an analysis excludes the prosecution of the innocent.

All signs of a crime are divided into two groups - objective and subjective signs. The former characterize the object of the criminal attack and the external side of the act, while the latter reveal the characteristics of the person who committed the act and his motives (the internal side of the act).

Objective signs are grouped into two element corpus delicti: the object of the crime and the objective side. Object- these are those social relations that are harmed as a result of a crime. Objective side– this is the content, the external manifestation of a criminal act in the surrounding world. Subjective characteristics also form two elements: the subject of the crime and the subjective side. Subject – this is the person who committed the crime. Subjective side- this is the mental attitude of a person to what he has done.

Thus, the crime is divided into four elements, each of which groups its own characteristics.

The elements of a crime can be systematized based on their purpose. Mandatory elements of the composition are those without which the existence of a crime is impossible. Optional– these are signs that are not characteristic of all crimes, but highlight the features of a particular crime.

Qualifying (aggravating) signs indicate an increased risk of crime. Their presence leads to the establishment of more severe sanctions. For example, such signs are enshrined in Part 2 of Art. 139 of the Criminal Code (murder under aggravating circumstances) in relation to the main element – part 1 of the same article (“simple” murder). Emollient signs, on the contrary, indicate less danger and entail a reduction in sanctions compared to the main group. For example, Articles 140-143 of the Criminal Code have mitigating signs of murder compared to the same part 1 of Art. 139 of the Criminal Code.

Special(species) characteristics make it possible to distinguish its varieties from the main composition. Yes, Art. 210 of the Criminal Code (theft by abuse of official position) is a special case of the main, general (generic) composition provided for in Art. 424 of the Criminal Code (abuse of power or official position).

3. Types of crimes.

Crimes can be grouped according to various criteria.

According to the degree of public danger, they are divided into the following types:

— main cast contains features common to all crimes certain type(for example, the elements of hooliganism, recorded in part 1 of Article 339 of the Criminal Code);

— composition with qualifying (aggravating) circumstances contains additional features that increase liability (for example, part 2 of article 339 of the Criminal Code compared to part 1 of the same article). Composition with special qualifying circumstances provides for increased liability in comparison not only with the main, but also with the qualifying personnel (part 3 of Article 339 of the Criminal Code);

— composition with mitigating circumstances contains signs that significantly mitigate liability (for example, murder in the heat of passion, exceeding the limits of necessary defense, etc.).

According to the range of acts covered, the following are distinguished:

— general (generic) a composition that has characteristics characteristic of a number of homogeneous crimes, for example, theft;

— special (species) a composition that has characteristics that distinguish varieties of the same act from the general composition. For example, Art. 188 of the Criminal Code provides for liability for libel, and Art. 367 of the Criminal Code – for slander against the President of Belarus.

— simple compositions that contain only one object, one act, one form of guilt, one consequence;

— complex compositions that include several similar elements and characteristics. Complex composition may include several objects(for example, Article 207 of the Criminal Code - robbery, has two objects: property and human health).

Complex composition With several actions involves performing several actions. These may be so-called mandatory actions. For example, speculation - Article 256 of the Criminal Code (now excluded from the code), provided for the purchase and subsequent resale of goods as an integral part of the crime. Composition with alternative actions, for example, Art. 222 of the Criminal Code (production or sale of counterfeit means of payment), provides for liability for any of the actions specified in the disposition of the article. Composition with repeated actions increases responsibility for repeated commission of similar, same type of actions (for example, Part 2 of Article 205 of the Criminal Code - theft committed repeatedly).

Complex composition with several consequences describes the different consequences of criminal actions. For example, Part 1 of Art. 147 of the Criminal Code presupposes as consequences life-threatening bodily injuries, or permanent disfigurement of the face, or other consequences.

Compound with two forms of guilt (with complex guilt) presupposes the presence of intent to act and carelessness about the consequences, such as, for example, part 3 of Art. 147 of the Criminal Code - intentional infliction of grievous bodily harm, resulting in the death of the victim through negligence.

Complex composition with two subjects distinguishes between identical actions of different subjects. Thus, Articles 358 and 356 of the Criminal Code distinguish between espionage committed by citizens of Belarus (this would be treason) and espionage committed by foreigners or stateless persons (this would be “ordinary” espionage).

According to the structure (features of the description), the compositions are divided into:

— material, which have a mandatory sign of the objective side of the occurrence of specific consequences (for example, Article 153 of the Criminal Code presupposes the occurrence of minor bodily injuries). These consequences can be directly indicated in the article, or assumed based on the meaning of the act described in it.

— formal, which do not contain a description of the consequences in the disposition (Article 418 of the Criminal Code - evasion of paying a fine). Responsibility in such cases occurs when the act is committed. Failure to indicate consequences does not mean they do not exist. They certainly exist; a criminal act causes harm to social relations, but the consequences are not indicated in the disposition of the article because they are difficult to definitely describe.

— truncated compositions, which transfer the moment of the end of the crime to the stage of preparation for it or an attempt to commit it (for example, Article 357 of the Criminal Code - conspiracy to seize state power).

4. The relationship between the concepts of crime and corpus delicti.

The concept of a crime reflects its socio-legal content, and the concept of corpus delicti is a formalized expression of this content. A crime is a phenomenon of social life, and the corpus delicti is a criminal legal description of this phenomenon. The concept of a crime is a deliberate limitation, a schematization of the concept of a crime for the convenience of criminal legal analysis, it is a formalized model of a crime. A specific crime is always individual, always differs from other crimes in the characteristics of the person’s actions and the characteristics of his personality. The concept of corpus delicti allows us to identify similar characteristics in each specific act.

There is a distinction between the concept of corpus delicti in general, as a broad scientific abstraction, and the corpus delicti of a specific crime committed by a specific person.

Both concepts - crime and corpus delicti - characterize such a feature as an act and such a feature as guilt. In this their content coincides. But the concept of corpus delicti does not include such a feature as public danger. It is only assumed. Therefore, in principle, any act can be described through the elements and signs of a crime, regardless of whether it is included in the Criminal Code or not.

5. The concept of qualification of crimes.

Qualification crime is the establishment of correspondence between the actual signs of the committed act and the signs of the crime. To qualify an act means to establish whether it falls within the criteria specified in the disposition of the article of the Criminal Code or does not fall within it. The establishment of such correspondence is made by comparing the signs provided for in the law with the signs of the act actually committed. At the same time, from the entire set of factual circumstances of the committed act, only those that are provided by law as elements of a crime are selected for analysis. Circumstances that are not signs of composition are not important for qualification.

The qualification process consists of the following stages:

— clarification of the content of the signs of the analyzed act;

— selection of the article of the Criminal Code to be applied, clarification of the content of the elements of a crime provided for by it;

— correlation of the signs specified in the article with the signs of a specific act;

- a conclusion about the correspondence or inconsistency between them.

The result of the qualification process is the selection of articles of the Special Part that fully cover the act. From a theoretical point of view, each criminal act must have its own rule of law. One act cannot simultaneously fall under competing articles of the code. Qualification in this sense can only be correct or incorrect. Alternative qualifications (either...or) are not permitted. If it is impossible to establish all the signs and attribute them to a specific crime, it is necessary to interpret all doubts in favor of the person who committed the act.

Qualification “with reserve” is not allowed when an investigator or judge deliberately adjusts an act to a more stringent article, believing that a higher or higher supervisory authority if necessary, correct the error and reclassify the incorrectly assessed act. This may not happen. In addition, being charged with a more serious crime than the one actually committed significantly infringes on the rights of the accused.

Reasonable classification of crimes is important for ensuring law and order in the country, for achieving the goals of criminal liability, for restoring justice and protecting citizens.

Related questions:

In what forms (types) can a crime be committed?
Name the conditions of criminal liability.
What are the similarities and what are the differences between the concepts of “crime” and “corpus delicti”? What is the meaning of the category “corpus delicti”?
How do the concepts of generic and specific corpus delicti relate?
Give some examples of material and formal elements of the crime.
What is the classification of crimes? What is its significance? Name the stages of qualification of a crime.

Concept, signs and elements of crimes, its meaning. Types of compositions

The corpus delicti is a set of objective and subjective characteristics established by criminal law that characterize a socially dangerous act as a crime.

Objective (external) signs of a crime characterize the object and objective side of the crime. Subjective (internal) signs – the subject and the subjective side of the crime.

There are necessary (mandatory) and optional elements of a crime.

The necessary features are mandatory for all elements of a crime without exception; they are inherent in each specific element of a crime. Such signs are: to characterize the object of the crime - social relations that the crime encroaches on; to characterize the objective side - a socially dangerous action or inaction (for the so-called material elements of crimes, criminal consequences (result) and a causal relationship between the act (action or inaction) and the resulting harmful consequences (result) are also mandatory); to characterize the subjective side - guilt ( in the form of intent or negligence); to characterize the subject of the crime - individual, sane and has reached the age at which criminal liability begins in accordance with the law.

Optional features are inherent only in some elements of the crime. They are indicated in the law when describing the elements of individual crimes in addition to the general characteristics in order to reflect the specific properties of this composition. With the help of these signs, the crime is characterized by additional features that express the specificity of this type of crime. This group includes such features as the subject of the attack, socially dangerous consequences, the causal relationship between the act and the consequences, method, conditions of time and place, setting, tools and means of committing the crime, motive and purpose of the crime, special characteristics of its subject. Depending on how important the legislator attaches to one or another optional feature, it can perform one of three functions.

Firstly, often one of the optional characteristics is introduced into the main element of the crime and thus becomes a mandatory element of this element. For example, the method of committing a crime, being an optional feature in general theoretical terms, becomes a mandatory feature in relation to theft (a secret method of stealing someone else's property). Secondly, the same attribute may in other cases acquire the meaning of a qualifying one, i.e. a sign that increases the danger of a crime and changes its qualification (murder committed in a generally dangerous way - clause “e”, part 2 of article 105 of the Criminal Code). Thirdly, if the attribute is not included in the main composition (has not become mandatory) and is not provided as a qualifying one, it can act as a circumstance mitigating or aggravating punishment (Article 61 or 63 of the Criminal Code) and as such influence the election court type and amount of punishment. For example, the commission of any crime in such ways as special cruelty, sadism, bullying, as well as torture for the victim, is considered as an aggravating circumstance in all cases where such a method is neither mandatory nor a qualifying feature (clause “and » Part 1 of Article 63 of the Criminal Code).

The corpus delicti structurally consists of four elements:

object;
objective side;
subject;
subjective side.

The main (or simple) corpus delicti (without additional features).
Qualified composition (with additional aggravating circumstances).
Particularly qualified personnel (with additional circumstances that particularly aggravate liability).
Privileged composition (with mitigating circumstances).

Based on the nature of their structure and the way they are described, elements of a crime can be divided into simple and complex.

A simple composition contains signs that characterize any one crime encroaching on one specific object (murder, theft).

Complex compositions are divided into compound, alternative, compositions with two actions, two forms of guilt, two objects.

Compound offenses include simultaneously two or more independently punishable criminal acts. Each of the acts specified in the composition, under appropriate conditions, could entail independent liability for the perpetrator.

An example is Art. 212 of the Criminal Code of the Russian Federation, which establishes criminal liability for mass riots. The legislator included in the composition of mass riots such criminal acts as organizing mass riots, accompanied by violence, pogroms, arson, destruction of property, the use of firearms, explosives or explosive devices, as well as armed resistance to government officials. Each of these crimes could entail independent criminal liability for the perpetrators, but, taking into account the increased public danger of this type of crime, the legislator constructed a special element of the crime.

Alternative compositions - compositions that describe a number of actions, each of which is sufficient to bring the perpetrator to criminal liability (for example, Article 222 Part I of the Criminal Code of the Russian Federation establishes criminal liability for the illegal acquisition, transfer, sale, storage, transfer or carrying of firearms, ammunition, explosives or explosive devices).

Compositions with two actions are compositions, the objective side of which involves the performance of not one, but two actions.

An example of such a crime is robbery (Article 162 of the Criminal Code of the Russian Federation). To have a completed robbery, it is necessary that there was an attack with the use of violence dangerous to life or health, or with the threat of such violence and theft of someone else’s property.

Compositions with two forms of guilt include those in which the subjective side of the crime is characterized by a heterogeneous form of guilt in relation to actions and the consequences of these actions. An example of a composition with two forms of guilt is Art. 111 Part IV of the Criminal Code of the Russian Federation (intentional infliction of grievous bodily harm, resulting in the death of the victim through negligence).

Based on the nature of the legislative structure, crimes are divided into:

Material composition - a mandatory element of the objective side of the completed crime is the presence of consequences. For example, Art. 105 of the Criminal Code of the Russian Federation – premeditated murder, Art. 158 of the Criminal Code of the Russian Federation - theft.
Formal composition - a mandatory feature is the very commission of actions prohibited by law, regardless of the occurrence of harmful consequences.

For example, Art. 129 of the Criminal Code of the Russian Federation - libel, Art. 130 of the Criminal Code of the Russian Federation – insult, Art. 338 of the Criminal Code of the Russian Federation – desertion.

3. Truncated composition - a mandatory sign is the occurrence of harm, but not after, but during the commission of a socially dangerous act. For example, Art. 162 of the Criminal Code of the Russian Federation - robbery, i.e. moment is considered a completed crime.

Composition of the crime. Classification of compositions: Video

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Concept and types of crimes

Crime concept

Doctrine of the concept of crime

In the world there are two types of definition of what is a crime: formal and material.

In many foreign countries A formal definition of a crime has been adopted, according to which an act provided for in the criminal code of the relevant country is considered a crime. But in this case, it is not clear on what basis certain acts are classified as criminal, and nothing prevents the legislator from establishing, for example, the following rule: “Planting trees is punishable by three years of imprisonment.” And most importantly, the definition does not allow us to distinguish a crime from a minor act, that is, from an act that, due to its insignificance, cannot be punished to the fullest extent of criminal law. With a formal definition of a crime, you can, for example, put a person in prison for stealing a loaf of bread, because formally it is still theft.

The material definition of a crime includes such signs that determine why a given act is a crime, first of all, this is an indication of the public danger and the objects of the attack. However, one cannot go to the other extreme, defining a crime solely through material characteristics, as was done in the Criminal Code of the RSFSR of 1922, where an action or inaction dangerous to the worker-peasant legal order was recognized as a crime, i.e. in order to name a person criminal, it is not even necessary to determine what cannot be violated. Thus, a judge in 1922, based on the worker-peasant legal consciousness, could declare a crime any act that, for some reason, seemed dangerous to the Soviet state.

It seems that only a combination of these two approaches will give the desired result.

Signs of a crime

A crime is a socially dangerous act. Public danger, in other words, the harmfulness of an act is expressed in causing damage to any interests protected by criminal law. Let's say that theft damages property relations accepted in society, and therefore it is antisocial. An act that, although formally falls under some element of a crime, does not have the sign of a public danger, is not a crime. For example, someone defending a group of children from an attack by a homicidal maniac will inflict bodily harm on him. Formally, his act is subject to punishment, since it is provided for by the Criminal Code of the Russian Federation. But it is not socially dangerous, but, on the contrary, useful; This means there can be no talk of a crime.

What determines public danger?

Firstly, the magnitude of the damage. The theft of two cars is more dangerous than the theft of one. Secondly, the method of committing the crime: with or without violence, by a group of people or individually, with or without weapons. Thirdly, motives, incentives to commit a crime. Acts committed out of self-interest, revenge, or the desire to hide another crime will always be more severely punished. Fourthly, the time and situation in which the acts were committed. The situation of social disaster, state of emergency, wartime, combat situation significantly aggravates the degree of the same acts committed in peacetime, in normal conditions.

Crime is a criminally unlawful act. This means that the act must be provided for in the criminal law, otherwise, no matter how socially dangerous a person’s act may be, it will in no case be considered a crime. For example, the act of a man leaving his wife with an infant child without a means of subsistence is certainly immoral and antisocial, but it is not provided for by the Criminal Code of the Russian Federation and, therefore, is not considered a crime. In criminal law, the use of analogy is unacceptable. For example, a judge, when considering a case of intrusion into a computer network and theft of information from a data bank, cannot apply the rules on theft, although they generally regulate a similar situation.

A crime is a guilty act. A person is subject to criminal liability and punishment for actions if they were realized by the subject of the crime and if he was able to regulate his behavior, i.e. if consciousness and will were manifested in the actions committed. These two factors find external expression in the category of guilt, which is the mental attitude of a person in the form of intent or negligence to the act committed and its consequences, as provided for by the Criminal Code of the Russian Federation, expressing a negative attitude towards the interests of the individual and society.

A crime committed intentionally is an act committed with direct or indirect intent.

Direct intent - This is a situation where a person was aware of the social danger of his actions (inaction), foresaw and desired the criminal consequences of his act. This happens, for example, when a person, in the heat of a quarrel, is ready to kill his enemy and deliberately stabs with a knife in the most vulnerable places: the stomach, chest, realizing that this can cause death.

Indirect intent - this is a situation when a person is aware of the social danger of his actions (inaction), foresees the consequences and consciously allows them to occur, i.e. he is indifferent to their occurrence. In other words, criminal consequences are not the purpose of the crime, but a by-product - the price that a person is willing to pay to achieve other goals. This happens when, in the process of attacking a collector, a criminal shoots back and kills bystanders.

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

Frivolity - This is a situation where a person foresaw the possibility of consequences, but frivolously, without sufficient grounds, counted on preventing them. This happens, for example, when a driver, realizing that it is dangerous, exceeds the speed limit in icy conditions and this leads to a traffic accident with casualties.

Negligence - this is a situation where a person did not foresee, but with the necessary care and foresight, could and should have foreseen the onset of criminal consequences. So, R. was careless about fulfilling his official duties, as a result of which unauthorized persons entered the plant territory and stole methanol there. As a result, 19 people died. R. was convicted of negligence.

There are situations when a person did not realize and, due to the circumstances of the case, could not realize the social danger of his actions, should not and could not foresee the onset of consequences. This happens, for example, when a person, having bought a TV and turned it on, suddenly sees that spontaneous combustion has occurred, as a result of which the house burned down and people died. No matter how grave the consequences may be, if a person should not and could not have foreseen them, he is considered innocent and his act is not considered a crime.

Crime and its types

As mentioned above, a crime is a legal concept, the general features of which are defined in the norms of the general part of the Criminal Code of the Russian Federation. It is necessary to distinguish the concept of crime from the concept of criminality. Crime is a historically variable, social, criminal-legal phenomenon, representing the totality of all crimes committed in a state or a particular region over a certain period.

Crime- this is a socially dangerous, illegal, guilty act of a legally competent person, for which criminal punishment is provided.

Signs of crime as a dangerous social phenomenon:

1. Public danger act is that a crime always encroaches on particularly important social values, defined as the object of criminal legal protection in a special part of the Criminal Code of the Russian Federation.

The law talks about two parameters of the public danger of a crime: the nature of the public danger and its degree.

Floor the nature of the public danger act is understood as a qualitative characteristic of social danger and its degree.

Nature of public danger specific type a crime is determined by the signs specified in this article, reflecting the value of the benefits that this act encroaches on: the danger of the method used to cause harm; the amount of harm caused; conditions under which harm is caused; the form of guilt or its type, and sometimes the personal qualities of the perpetrator of the crime.

Under degree of public danger is understood as a quantitative measure of the social danger of a crime committed, it is determined by the court by establishing a quantitative measure of the signs specified in the special part of the Criminal Code of the Russian Federation, the specific circumstances of the crime committed, as well as circumstances mitigating or aggravating the punishment that are not related to the signs specified in the disposition. The degree of public danger of a crime serves as the basis for the court to assign the type and amount of punishment.

2. Illegality means that an act committed can be recognized as a crime if it is provided for in the criminal law in the form of a prohibition on a certain action or inaction. Wrongfulness, therefore, is the prohibition of certain acts under threat of punishment.

3. Guilt means that a socially dangerous and illegal act can be recognized as a crime only if it was committed guilty, i.e. consciously. Only a person who, due to his age and mental state, is capable of realizing his actions and also managing them can be found guilty. Therefore, acts committed by minors and insane persons cannot be recognized as a crime.

4. Act acts as an act of external behavior of a person, committed in the form of action or inaction. Action is the active and conscious behavior of a person. It manifests itself in various body movements, the use of objects, tools, mechanisms, and verbal statements. Inaction, on the contrary, represents the conscious, volitional passive behavior of a person, consisting of non-fulfillment, i.e. refraining from fulfilling the duty imposed on him to act in a certain way.

5. Punishability means that for every socially dangerous act prohibited by criminal law, there must be criminal liability in the form of strictly defined deprivations or restrictions.

Minor act is not a crime if both conditions are present simultaneously. First: it must formally fall under the elements of a crime provided for by criminal law. Second: it lacks another property of the crime - social danger.

Minor acts are not recognized as crimes only if the insignificance was both objective and subjective, i.e. when a person wanted to commit an insignificant act, and not because, due to circumstances beyond his control, this happened in a particular case.

Public danger is a quality inherent in all crimes. However, they differ in content and level of harm caused. Depending on the nature and degree of public danger, as well as the form of guilt, all criminal acts are divided into the following categories:

minor crimes;
crimes of moderate gravity;
serious crimes;
especially serious crimes.

Minor crimes(Article 15 of the Criminal Code of the Russian Federation) recognized intentional and careless acts, for the commission of which the maximum punishment does not exceed two years of imprisonment.

Crimes moderate severity intentional acts are recognized, for the commission of which the maximum penalty does not exceed five years of imprisonment (for example, violation of the rules for accounting, storage, transportation and use of explosives, flammable substances and pyrotechnic products - Article 218 of the Criminal Code of the Russian Federation), and careless acts, for the commission of which the maximum the punishment exceeds two years of imprisonment.

Heavy Crimes are recognized as intentional acts for which the maximum punishment does not exceed ten years in prison (for example, bringing a knowingly innocent person to criminal liability, coupled with accusing a person of committing a serious or especially serious crime - Article 299 of the Criminal Code of the Russian Federation).

Particularly serious Crimes are intentional acts, the commission of which is punishable by imprisonment for a term of over ten years or a more severe punishment (for example, an encroachment on the life of a person administering justice or a preliminary investigation - Article 295 of the Criminal Code of the Russian Federation). A more severe punishment could be life imprisonment or the death penalty.

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1. Concept, subject, tasks and principles of criminal law.

2. Concept, signs and elements of a crime.

3. Criminal liability and its grounds.

4. The concept of complicity in a crime. Types of accomplices.

5.Fighting corruption in Kazakhstan

1. Concept, subject, tasks and principles of criminal law. Criminal law – This is a branch of law, which is a set of legal norms established by the highest bodies of state power, defining the criminality and punishability of an act, the grounds for criminal liability, the purposes of punishment and the system of punishment, the general principles and conditions for their purpose, as well as exemption from criminal liability and punishment.

The objectives of criminal law are:

1) protection of human and civil rights and freedoms;

2) protection of property;

3) protection of public order and public safety;

4) security environment;

5) protection of the constitutional system of the Republic of Kazakhstan from criminal attacks;

6) ensuring peace and security of mankind;

7) crime prevention.

Under the principles of criminal law are understood defining principles, fundamental ideas that are enshrined in the norms of criminal law.

The following principles of criminal law have been established:

1) principle of legality;

2) principle of equality of citizens before the law;

3) principle of guilt;

4) principle of justice;

5) principle of humanism.

2. Concept, signs and elements of the crime. In accordance with Art. 9 of the Criminal Code of the Republic of Kazakhstan: "Crime - a socially dangerous act (action or inaction) committed culpably, prohibited by this Code under threat of punishment.” Based on this definition It is clear that the crime is characterized by a number of mandatory features. This is the social danger of the act, its illegality, guilt and punishability. Only if all the indicated signs are present in the aggregate, an act can be recognized as a crime.

It is generally accepted in the legal literature that in every corpus delicti There are four mandatory elements: object, objective side, subject and subjective side. If at least one of them is absent from the crime, this means that there is no corpus delicti as a whole, and therefore there is no basis for criminal liability.

Basic elements of the crime- this is a composition that contains a set of basic, permanent signs of an act of a certain type and does not provide additional signs that increase or decrease the degree of social danger of the act.

3. Criminal liability and its grounds. Criminal liability is one of the types of legal liability that is established by the state in criminal law and is assigned to persons guilty of committing crimes.

a) censure by the state of the committed socially dangerous act and the person guilty of committing it;

b) application by the court of criminal penalties provided for by law.

Criminal legal relations - This regulated criminal law specific social relations that arise in connection with the commission of a crime.

4. The concept of complicity in a crime. Types of accomplices. A crime can be committed by one person or by joint actions or inaction of several persons. A situation where a crime is the result of joint efforts of several persons, constituting a significant part of all crimes committed, called complicity. In Art. 27 of the Criminal Code of the Republic of Kazakhstan, complicity in a crime is defined as the intentional joint participation of two or more persons in the commission of an intentional crime. Depending on the nature of the person’s activities and the degree of his participation in the crime, accomplices in the crime include, along with the perpetrator, organizers, instigators and accomplices. The commission of a crime in complicity by several persons poses, as a rule, a greater social danger than the commission of a crime by one person.