1. Development and formation of the concept and types of exemption from criminal liability
2. Types of exemption from criminal liability
2.1 Active remorse
2.2 Reconciliation with the victim
2.3 Expiration of the statute of limitations
List of used literature
Topic of the course work: "Exemption from criminal liability: concept and types".
Exemption from criminal liability under Russian criminal law is the exemption of a person who has committed a crime, but subsequently lost his former public danger due to a number of circumstances specified in the criminal law, from the application of criminal law measures to him by the State.
Exemption from criminal liability to a certain extent contradicts the principle of its inevitability, formulated by representatives of the classical school in criminal law. At the same time, the Criminal Code of the Russian Federation of 1996 for the first time sets among its tasks not only the protection of the individual, society and the state from criminal encroachments, but also the prevention of crimes (Article 2). The preventive function of the criminal law is implemented, including through the action of the institute of exemption from criminal liability. Thus, the rules on exemption from criminal liability in connection with active repentance (art. 75) and in connection with reconciliation with the victim (Article 76) are designed to encourage positive post-criminal behavior of perpetrators, which is quite consistent with the goals of criminal justice.
So, in some cases, the achievement of the goals of the fight against crime is possible without bringing the perpetrators to criminal responsibility or when they are convicted, but with exemption from the actual serving of the sentence. In this regard, the criminal law of Russia establishes the institutions of exemption from criminal liability (Chapter 11) and exemption from punishment (Chapter 12). The Criminal Code of the Russian Federation has devoted two separate chapters to these institutions. Thus, the legislator distinguishes between the concepts of "criminal liability" and"punishment". The position of the legislator needs to be explained.
These concepts, although not identical, are quite close in meaning. Depending on the different understanding of criminal liability, different interpretations of the essence and legal nature of exemption from it are also possible.
Thus, the purpose of this course work is to study the institute of exemption from criminal liability.
To achieve this goal, you need to solve the following tasks::
1) consider the development and formation of the concept and types of exemption from criminal liability,
2) analyze the types of exemption from criminal liability, such as:
- the active repentance,
- reconciliation with the victim,
- expiration of the statute of limitations,
3) draw conclusions on this topic.
The theoretical basis of the work was made up of the works of Russian authors. In the domestic criminal law literature, a large number of authors have paid attention to the problem of exemption from criminal liability. In this regard, the works of Alikperov Kh.D., Golovko L. V., Kelina S. G., Kolomeets V., Malkov V. P., Naumov A.V., Tagantsev N. S. and other authors were analyzed, which give different views on exemption from criminal liability.
Also researched and analyzed legal acts: the criminal code of the Russian Federation, the Collection of resolutions of Plenums of the Supreme Courts of the USSR and RSFSR (Russian Federation) on criminal cases, a summary report of judicial statistics Department of the Main Department of organizational and legal support of court activities of the judicial Department under the Russian Supreme Court in 2000 in the form 10.2.
1. Development and formation of the concept and types of exemption from criminal liability
In Russian legal science, the concept of criminal liability is debatable. Some authors understand it as the duty of the person who has committed a criminal act to be responsible for it in accordance with the criminal law. Others identify criminal liability with the actual implementation of the above-mentioned obligation, i.e., in essence, with the implementation of the sanction of the criminal law norm. In addition, the theory of domestic criminal law often refers to positive criminal liability, which is the basis of lawful behavior and is expressed in the awareness of the person's obligation not to commit an act prohibited by criminal law.
However, the specifics of criminal liability, according to the fair remark of A.V. Naumov, are more related to the measures of state coercion that are applied to the offender. Therefore, the author sees no serious contradiction between the "understanding criminal liability as the person subjected to coercive measures of criminal legal nature of the crime and understanding it as the actual application of these measures". It is difficult to disagree with A. V. Naumov on this issue.
As for punishment, it is essentially one of the direct manifestations of criminal responsibility, its expression. Therefore, exemption from criminal liability is at the same time an exemption from possible punishment. Punishment outside of criminal responsibility is unthinkable. However, when the legislator speaks of exemption from criminal liability, he means mainly the "exemption" of the person who committed the crime from conviction by the State, i.e., from conviction by the court. Exemption from criminal liability, in contrast to exemption from punishment, can be granted not only by a court (judge), but also by other bodies: a prosecutor, an investigator or an inquiry body with the consent of the prosecutor. Only the court can release from punishment.
As you know, the onset of criminal liability is possible only if there is a reason for it, i.e. when committing an act containing all the signs of a crime (Article 8 of the Criminal Code). Consequently, the question of exemption from criminal liability arises only when a criminal act has taken place. Therefore not related to the institutions of exemption from criminal responsibility, for example, cases carry out acts of necessary defense, extreme necessity, detention of the criminal, the Commission of socially dangerous acts of insane or minor, as well as the performance of the action, though formally containing signs of any act provided for in criminal code, but by virtue of insignificance not representing public danger. If there is no crime, and therefore no grounds for criminal liability, then it is impossible to be released from it.
In line with the enlightenment-humanistic and classical trends in foreign criminal law of the XVIII-XIX centuries, it was impossible to widely develop the institutions of exemption from criminal liability, with the exception, perhaps, of the institute of prescription. At the beginning of the XX century, the situation changed. Both foreign and domestic lawyers are beginning to consider the possibility of introducing a variety of alternative measures of criminal liability into criminal law. The famous Russian Professor A. A. Zhizhilenko in his speech delivered in 1916. at St. Petersburg University, noted: "The Criminal Code should clearly indicate that the fight against crime is not limited to the use of punishments and that other measures are appropriate in addition to or in lieu of punishment."
Another prominent Russian lawyer, N. S. Tagantsev, considered it quite justified from the point of view of Christianity to release the person who committed the crime from criminal liability and punishment - under certain conditions. "We," the author wrote, " punish in compliance with the immutable requirements of the moral law, but if the internal judge - N. S. Tagantsev also believed that not being released from criminal responsibility in some cases is equivalent to being punished twice for the same act.: "We want to find out by punishment the insignificance of the attempt to deny the will of the absolute by private will, we want to find out to the criminal the immutability and inviolability of the dictates of law, and this discovery has already been made in a different way, - the criminal himself solemnly declared that his act was the result of impotent self-conceit, of which he was sincerely guilty; when he had made amends, and perhaps with interest, for the damage done, he restored as far as possible the disturbed order. How can we talk about just retribution, when under such conditions the punishment will be a direct violation of the principle of "do not avenge twice for one".
In the theory of domestic criminal law of the pre-revolutionary period, it was said not about the types of exemption from criminal liability, but about "circumstances that eliminate punishability", since there was a concept of a single punitive activity of the state, which included both criminal prosecution and execution of punishment. At the same time, two groups of circumstances were distinguished. The first included those that were relevant only for individual crimes: reciprocity of grievances, disclosure of accomplices, etc. The second group of circumstances of general importance was contained in section one of the Criminal Code of 1903. This group included, for example, such circumstances as the death of the defendant, the statute of limitations, and the pardon. The second group of circumstances can also include measures that were provided for by the Statute of Criminal Proceedings: reconciliation with the victim and voluntary payment of penalties and remuneration.
These provisions were subsequently extended to other torts. At the same time, the legislator proceeded from the considerations that if the act is recognized as "unimportant and is subject only to a monetary penalty, and if the perpetrator, fully aware of his guilt, agrees to pay the penalty immediately falling on him, and moreover in its highest amount, as well as to compensate for any loss caused by him, then the production of further investigation, especially judicial procedure, seems completely useless for justice and at the same time often significantly aggravating the fate of the defendant." However, these provisions were included by the State Council not in the text of the Criminal Code, but in the Statute of Criminal Proceedings, since the actions of the accused, as defined above, "eliminated" not the application of punishment, but the initiation or further prosecution.
The trend that emerged at the beginning of the XX century, by the end of it has acquired global proportions. Measures applied not only as a substitute or supplement to traditional punishments, but also as completely excluding criminal prosecution and conviction by the court, are considered by many modern States as one of the most effective forms of influence on crime.
The specific types of alternative criminal liability measures are quite diverse in different States.
In the Russian legal literature, there are two main models of the system of alternative measures used in the criminal justice of foreign countries. The first model - "Dutch-Belgian" - is a so-called transaction. The essence of this type of exemption from criminal liability lies in the fact that the investigative bodies (prosecutor's office, police) refuse to prosecute a person if the latter agrees to pay to the state treasury the amount of money established in each specific case.
Having appeared in Belgium in 1935, the transaction was supposed to help eliminate the trial for minor economic crimes, if the accused did not dispute his guilt.
The final consolidation of the institution of transaction in Belgium took place in 1984. Since that time, it has been applied to any criminal acts for which a penalty of up to five years ' imprisonment is provided. The transaction is allowed only at the pre-trial stages of the criminal process. The Prosecutor's Office determines the amount of money within the limits established by law, and the term of its payment, after which it sends the guilty person an offer to pay the said amount. In case of refusal of the accused to make such a sum in the Treasury criminal prosecution continues in the usual manner.
The institution of transaction in the Netherlands is practically the same as in Belgium, with the only peculiarity that it is possible for crimes punishable by up to six years in prison. This institution is used in the Netherlands for about one third of the criminal cases that fall into the investigative authorities.
The second model, which has become widespread in foreign criminal law, is called mediation. The latter exists in a variety of variants (simple, complex). The essence of mediation is to use a mediation procedure to reconcile the victim with the accused when the latter compensates for the damage caused. As noted in the Russian legal literature, an important feature of the mediation system is that it provides for mediation of specially authorized entities in the reconciliation of the parties, active measures to resolve the criminal law conflict, and not "passive statement of the presence or absence of reconciliation".
Chapter 11 of the criminal code of 1996, which regulates different types of exemption from criminal liability, includes provisions for exemption in connection with active repentance (article 75), in connection with reconciliation with the victim (article 76), in connection with change of conditions (article 77) and in connection with the expiration of the limitation period (article 78). The first two types of exemption from criminal liability are new.
The Criminal Code of the Russian Federation also provides for an independent type of exemption from criminal liability of minors, which is also the subject of special consideration.
The Criminal Code of the RSFSR of 1960 provided for other types of exemption from criminal liability: with administrative liability (Article 501), with the transfer of the case to a friendly court (Article 51), with the transfer of the guilty person on bail (Article 52).
The abolition of these types of exemption from criminal liability is quite justified.
According to Articles 50 and 501 of the Criminal Code of the RSFSR of 1960, a person who committed an act containing signs of a crime that did not pose a great public danger could be released from criminal liability with administrative responsibility, if it was recognized that his correction and re-education were possible without criminal punishment, and for the commission of this crime, the Code provided for punishment in the form of imprisonment for a term not exceeding one year or another, more lenient punishment.
Another type of exemption from criminal liability was provided for in Article 51 of the Criminal Code of the RSFSR. A person could be exempted from criminal liability with the transfer of the case to the comrades ' court, if it is made for the first time any of the following crimes: intentional slight bodily injury or assault, did not cause illness, the spread in the ensemble is false, defamatory member of the team speculation, insult, theft of low-value consumer goods and life, were the personal property of citizens, provided that the offender and the victim are members of the same team. Comradely courts could also consider cases of other crimes committed for the first time, if the Criminal Code provided for measures of public influence for them. In addition, such courts were entitled to consider for the first time committed acts that contain signs of a crime that does not pose a great public danger, if by the nature of the committed act and the person of the perpetrator could be corrected without punishment, with the help of measures of public influence. The comradely courts had the right to impose a fine or pass a public censure.
Saving such exemption from criminal liability would contravene the provisions of the Constitution (article 118) establishes that justice in the Russian Federation shall be administered only by court. At the same time, the latter is understood as such jurisdictional bodies that form the judicial system according to the Constitution of the Russian Federation (courts of general jurisdiction, arbitration courts, constitutional courts). The comradely courts that were created in enterprises and labor collectives did not belong to the judicial system and from this point of view were extraordinary courts. In addition, they often included people who were incompetent in matters of criminal law, so the correct and objective consideration of the submitted case was not always possible.
In 1990, the Committee of Constitutional Supervision of the USSR, in its opinion of September 13, pointed out that the provisions of the Criminal Code of the RSFSR in force at that time on exemption from criminal liability with the use of administrative responsibility or measures of public influence in return for it contradict the presumption of innocence, since they allow a person to be found guilty of committing a crime without
Under the current Criminal Code of the Russian Federation, the general basis for exemption from criminal liability for all types is the loss of the person who committed the crime, his former public danger, although this is explicitly stated only in Article 77 (exemption from criminal liability in connection with a change in the situation). Exemption in all cases is due to the presence of a number of circumstances established in the law.
Thus, article 76 of the criminal code stipulates that the exemption from criminal responsibility is applied in cases when the guilty person was first committed a minor offense and it is reconciled with the victim and make amends for a crime harm. All this indicates the loss of a person of public danger, in connection with which the need to apply criminal liability measures to him disappears.
At the same time, the public danger of the crime remains, since the criteria that were used as the basis for recognizing the act as criminal are unchanged. Exemption from criminal liability as an act of law enforcement agencies can not cancel the order of the law that defines the criminality of the act, its public danger. Thus, exemption from criminal liability is possible only in case of loss of a person of public danger.
In the specialized literature, another opinion is expressed about the nature of exemption from criminal liability. Thus, V. P. Malkov believes that the decision to release from criminal liability means the early removal of the legal consequences of committing a crime before the expiration of the statute of limitations for bringing to criminal responsibility. It is necessary to agree with the author that the exemption from criminal liability cancels all the consequences of the crime. However, exemption from liability cannot nullify the crime itself.
Let's illustrate this with an example. For example, a person who intentionally caused slight harm to the health of another person was released from criminal liability due to active remorse. Despite the fact that there are no negative criminal consequences in the form of punishment and a criminal record, the damage to health itself takes place, it cannot be "annulled", since it exists objectively.
It should also be noted that exemption from criminal liability does not mean forgiveness of the guilty person (except in cases of amnesty and pardon). Rather, it indicates that he has been granted leniency, that it is possible to achieve the goals of criminal justice without convicting the guilty person.
Let us ask ourselves whether it is really possible to achieve the goals of punishment if the guilty person is released from criminal liability. There are very different, sometimes polar, points of view on this issue.
The main purposes of punishment under Article 43 of the Criminal Code are: restoration of social justice, correction of the convicted person, prevention of new crimes.
The first goal is the restoration of social justice - obviously can be achieved by such behavior of the perpetrator, attests to his active repentance (restitution, victim costs associated with a perfect guilty of a crime, smoothing otherwise caused harm, the apology to the victim, etc.). Such actions are aimed, first and foremost, satisfaction of the senses of the victim. At the same time, they can also indicate the beginning of correction of the person who committed the crime, especially with his active, proactive behavior aimed at minimizing the negative consequences of the committed act.
Other circumstances specified in the law - a change in the situation, the expiration of a certain period - may also confirm the implementation of such goals of punishment as the correction and prevention of the commission of a new crime by this person.
However, according to another part of the lawyers, the achievement of the goal of general prevention in the case of exemption from criminal liability is ensured by the fact that such exemption is possible, but not necessary. So, A. V. Naumov on this occasion writes that "inherent in the law and confirm law enforcement an opportunity and not be bound by the decision on the release of specific persons from criminal responsibility, save for him (to some extent) the main motive of exposure to General criminal prohibitions and punishment - the fear of possible punishment, this suggests that the actual release of a person from criminal responsibility to a certain extent we can speak about the achievement of the General goal."
It seems that it is hardly possible to achieve the goals of general prevention when releasing persons guilty of committing crimes from criminal liability. General prevention is achieved through the threat of criminal responsibility and punishment directed at unstable persons who are deterred from committing crimes only by such a threat. It is difficult to say that exemption from criminal liability can prevent other persons from committing a crime. Thus, losses in achieving the goals of criminal liability and, in particular, punishment when released from it are inevitable, but in compliance with the principles of justice and humanism, as well as taking into account the possibility of achieving other goals of punishment, the law also establishes exemption from criminal liability.
The original point of view of X. D. Alikperov, who proposed to refer the norms establishing exemption from criminal liability to "compromise" norms. Among the norms - "compromises", he considered those that guarantee a person who has committed a crime, exemption from criminal liability or mitigation of punishment in exchange for such a person committing acts defined in the law and ensuring the implementation of the main tasks of the criminal law fight against crime.
According to X. D. Alekperov, the purpose of such a compromise is to eliminate (mitigate) harmful effects of the crime, ensuring the rights and legitimate interests of victims and defendants, sentencing the perpetrators to samooboronu and cooperation with law enforcement, revealing of the latent crimes increase clearance rate of reported crimes, saving of criminal repression, time and money of law enforcement agencies, etc.
This view has found support among other legal scholars.
Exemption from criminal liability can be carried out either by a court (without a guilty verdict), or by a judge, prosecutor, as well as an investigator or body of inquiry with the consent of the prosecutor.
The procedural form of exemption from criminal liability is the issuance of a special decision in the form of a resolution or ruling on the termination of a criminal case.
The termination of the case due to changes in the environment (article 6 of the criminal procedure code), in connection with active repentance (article 7 of the code of criminal procedure), with application to minors of coercive measures of educational influence (article 8 of the code), with the lapse of time or due to act of Amnesty (article 5 of the code of criminal procedure) is not allowed if the accused, claiming that he was innocent, against the termination of criminal case objects. This important procedural provision is designed to prevent cases where an innocent citizen is released from criminal liability on non-rehabilitating grounds.
The possibility of exemption from criminal liability not only by the court, but also by other subjects, and at the pre-trial stage, is rather ambiguously assessed by Russian lawyers. Some of them see this as a violation of the principle of presumption of innocence enshrined in article 49 of the Constitution of the Russian Federation 1993 according to which everyone charged with a criminal offence shall be presumed innocent until his guilt is proved as provided by Federal law and established by a legally effective court decision. These authors come to the conclusion that the current system of exemption from criminal liability by a Prosecutor, investigator or body of inquiry with the consent of the Prosecutor is contrary to the Constitution and article 5 of the criminal code, because these entities do not have the right to establish the guilt of persons suspected of committing a crime. Since only the court is competent to establish the guilt of a person in committing a crime, only he should be given the right to decide on the application of criminal liability or on exemption from it (Yu. M. Tkachevsky). In addition, States that allow for exemption from criminal liability not only the court but also to other above-mentioned bodies, led to wide use of this institution: the exemption from criminal liability provided 40 percent or more of the persons who committed the crime.
Another problem is related to the question of whether exemption from criminal liability is a right or an obligation of the authorities authorized to make such a decision.
Thus, article 75 of the criminal code stipulates that a person has committed a minor crime can be exempted from criminal liability, if after committing the crime they voluntarily pled guilty, promoted crime disclosure, to repair the damage or otherwise make amends for the harm caused by the crime. The words "may be" are also used in the regulation of exemption from criminal liability in connection with reconciliation with the victim (Article 76), in connection with a change in the situation (Article 76). 77), in connection with the application of educational measures to a minor (Article 90).
However, article 78 of the criminal code on conditions of exemption from criminal responsibility in connection with lapse of time, the legislator categorically says that "a person is exempt from criminal liability" in the circumstances specified in this article. This imperative form is also used in a number of special rules of the Special Part, which provide for exemption from criminal liability in connection with active repentance. For example, according to the note to art. 198, a person who has committed an offense under named article (evasion of the physical person from tax or insurance premium to the state extrabudgetary funds), "exempted from criminal liability if it promoted disclosing of a crime and has completely indemnified the caused loss".
Many Russian lawyers pay attention to such a divergence of positions of the General and Special parts in the issue of exemption from criminal liability in connection with active repentance. At the same time, there is no consensus on which rule should be followed: established in the General Part or in the Special Part.
A. V. Naumov believes that if there are grounds provided for in Part 1 of Article 75, the law enforcement officer in certain cases "has the right not to release such a person from criminal liability". This is possible, according to the author, when " post-criminal behavior related to the varieties specified in the law does not indicate the full realization of the goals of punishment in connection with the release of a person from criminal liability. For example, the law enforcement officer received quite convincing and verified evidence that negatively characterizes the person who committed the crime from the moral side." As for the cases provided for in the Special Part, exemption from criminal liability in the presence of the signs specified in the relevant article, according to A.V. Naumov, is " mandatory for the law enforcement officer and does not depend on his discretion."
Often, prosecutors do not give their consent to the termination of a criminal case, although all the requirements of part 1 of Article 75 were met. Usually, such a refusal occurs when the accused was previously released from criminal liability on some non-rehabilitating basis or is characterized negatively.
Other authors believe that exemption from criminal liability in compliance with all the requirements set out in part 1 of Article 75 should be an obligation, not a right of the court (Yu. M. Tkachevsky). Otherwise, the purpose of the institution of active repentance will be lost. Moreover, exemption from criminal liability will largely depend on the discretion of the court.
The arguments of both sides deserve attention. Of course, it is necessary to take into account the personality in any case. It has already been mentioned above that the general basis for exemption from criminal liability should be recognized as the loss of a person in public danger. And from this point of view, both opinions do not contradict each other. The discrepancy is indicated in the question of whether or not a person can be considered to have lost the previous public danger, if all the requirements of the criminal law are met.
In connection with the analysis of the institutions of exemption from criminal liability, it is appropriate to consider such a problem. If a person released from criminal liability in connection with active repentance, reconciliation with the victim or a change in the situation commits a crime again, is it possible to re-release him from criminal liability if, of course, all other grounds exist? The Plenum of the Supreme Court of the Russian Federation positively resolved this issue in its decision.
The multiplicity of types of exemption from criminal liability and their different legal nature require the systematization of these types. In the legal literature, various classifications of grounds for exemption from criminal liability are given.
So, it is proposed to classify them into general and special. The first are the grounds for exemption from criminal liability, which are provided for in the General Part of the Criminal Code. There are six such grounds (except for those provided for in Part 1 of Article 81 of the Criminal Code). Four of them are included in Chapter 11 (Articles 75-78), called "Exemption from criminal liability". An independent type of exemption from criminal liability provided for in the General Part is exemption in connection with an act of amnesty (Article 84). In addition, this group of types of release should also include the release from criminal liability of minors in connection with the use of compulsory measures of educational influence (Article 90).
Since in some cases exemption from criminal liability is the right of investigative and judicial bodies, and not an obligation, even if there are all the necessary formal prerequisites for making such a decision, and in other cases the legislator imposes an obligation to exempt from criminal liability, the grounds for such exemption are proposed to be classified into discretionary and imperative.
Four general grounds (Articles 75-77, 90 of the Criminal Code) and two special grounds (Articles 337, 338 of the Criminal Code) are considered discretionary, when exemption from criminal liability is a right and not an obligation of the investigative and judicial bodies.
Mandatory grounds for exemption from criminal liability are provided for in three articles of the General Part (Articles 78, 81, 84 of the Criminal Code) and in the vast majority of cases of exemption from criminal liability provided for in the Special Part.
The conditional type of exemption from criminal liability includes only one-the exemption from liability of minors with the application of compulsory measures of educational influence to them (Article 90 of the Criminal Code). Other types of exemption from criminal liability are unconditional.
1. Criminal code of 13 June 1996 No. 63-FZ (as amended on 27 may, 25 June 1998, 9 February, 15, March 18, July 9, 1999, 9, March 20, June 19, August 7, November 17, December 29, 2001, 4, 14 March, 7 may, 25 Jun, 24, 25 July, 31 Oct 2002 11 Mar, 8 APR, 4, 7 July, 8 December 2003, 21, July 26, 28 Dec 2004, 21 Jul 2005)
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