1. The essence of murder
1.1 The concept and types of murder
1.2 Composition of a simple murder
2. The types of murder
2.1 Murder of a newborn child by a mother
2.2 Murder committed in a state of passion
2.3. Murder committed when exceeding the limits of necessary defense
List of used literature
The topic considered in the course work: "The concept of murder and its types".
The Criminal Code of the Russian Federation for the first time established a legislative definition of the concept of murder: "intentional infliction of death on another person" (Part 1 of Article 105). In the former criminal codes of the Soviet period, as well as in the Criminal Code of 1903, murder was not defined. Apparently, the legislators proceeded from the fact that the concept of "murder" in criminal law does not differ from the generally accepted one. This, in general, is true. However, in law enforcement practice, there was often a need to accurately establish the boundaries of this concept. Therefore, in the doctrine of criminal law, various definitions of murder were proposed, which were basically similar to each other. The legislative definition of murder is based on a generalization of the formulations developed by lawyers.
However, it has one significant difference. Previously, murder was considered both intentional and negligent infliction of death on a person. Accordingly, in the criminal codes there was a composition of reckless homicide. This position of the law was not always perceived positively. Its most consistent critic was M. D. Shargorodsky, who in 1948 drew attention to the fact that the word "murderer" in everyday life does not mean a person who carelessly deprived someone of life. From the point of view of criminal policy, it is inappropriate to apply the concept of the most serious crime against the person to cases of careless acts. Later, defending his point of view, he noted that "the expression" careless killer "is just as contrary to the spirit of the language as the expression "careless arson", you can only kill and set fire to intentionally. Carelessly can only cause death or cause a fire."
Most researchers and textbook authors of the time did not share this view, citing the current legislation and the inadmissibility of weakening the fight against reckless crimes against life. The first objection did not require confirmation, and the second was clearly far-fetched. It was the need to call the guilty person a murderer that often served as an internal psychological and linguistic brake when deciding whether to bring to justice under Article 106 of the Criminal Code of 1960. doctors, caregivers and other persons who carelessly, often in the form of inaction, caused death in the course of performing professional duties.
Therefore, it is necessary to recognize the successful refusal of the legislator from the concept of" careless murder", while increasing the responsibility for causing death by negligence due to improper performance of a person's professional duties (Part 2 of Article 109 of the Criminal Code).
Thus, the purpose of this course work is to study the concept of murder and its types.
To do this, you need to solve the following tasks:
1) give the concept and consider the types of murder,
2) reveal the composition of a simple murder,
3) analyze the types of murders:
- murder of a newborn child by a mother,
- murder committed in a state of passion,
- murder committed when exceeding the limits of the necessary defense,
4) draw conclusions on the topic.
1. The essence of murder
1.1 The concept and types of murder
Murder is the most serious form of assault on life. In part 1 of Article 105, the legislative definition of this crime is given: "Murder, that is, intentionally causing the death of another person...". This indicates that the legislator connects the concept of murder only with the intentional form of guilt. Negligent deprivation of life is called causing death by negligence (Article 109). The Criminal Law differentiates responsibility for murders according to the degree of public danger, distinguishing simple (Part 1 of Article 105), qualified (Part 2 of Article 105) and privileged (Articles 106, 107, 108) types.
The type of murder described in Part 1 and usually referred to as simple, assumes the absence of both reinforcing (qualifying) and reducing (privileged) signs. The crimes that entail punishability under Part 1, theory and practice include:
"murder out of jealousy. The victim may be one of the spouses, a real or imaginary rival. According to the Criminal Code of 1926, jealousy was recognized as a sign that increases the punishment for murder;
- murder out of revenge (except for those types of it that entail increased responsibility-see p. " b "and" l " part 2). This type of deprivation of life is characterized by the motive of payment for the previous behavior of the victim, his relatives. During the period of the Criminal Code of 1926, revenge was considered a kind of "other low motives" that increased the punishability;
- murder in a quarrel or fight (in the absence of hooligan motives).
The Criminal Code of 1960 also referred to the" simple " type of murder as the deprivation of life by a mother of her newborn child (now this is an independent type-Article 106). One of the drafts of the Criminal Code (1994 - Article 116) was supposed to allocate as a privileged type of murder out of compassion for a seriously ill person (euthanasia), but this proposal was not adopted by the legislator and therefore from the position of the current Criminal Code, the deed is also considered as a simple murder.
Other types qualified under Part 1 also include intentional deprivation of life out of cowardice, envy, as well as for so-called "dark" reasons.
Tsch. Having learned that his friend S. was going to marry V., he began to dissuade him from marriage, disapproving of V.'s behavior. Nevertheless, S. decided to marry and invited Ch. for the wedding. At its end, a drunken Ch. he went into the bedroom to the newlyweds and in the dark with a metal rod repeatedly hit the headboard of the edge of the bed, causing the death of his friend S. At the preliminary investigation and in court Ch. he claimed that he did not remember his actions and the motive for his behavior. The court recognized Ch. guilty of "simple" murder.
Taking a life out of jealousy, revenge should be distinguished from murder out of hooligan motives. In the latter case, the culprit uses a trifling excuse (a "sideways" look, refusal to give a light, the girl's disagreement to be escorted home, a harmless joke, etc.). On the contrary, if the attack is committed out of jealousy, revenge and other motives that arose on the basis of personal relationships, it, regardless of the place of its commission, should not be regarded as committed from hooligan motives.
The same applies to the qualification of murders committed in a quarrel or fight - in terms of distinguishing them from the deprivation of life from hooligan motives. In the resolution of Plenum of the Supreme Court of the Russian Federation of January 27, 1999 N 1 "About court practice on Affairs about murder (item 105 of the criminal code)" the courts proposed in this plan to investigate who was the initiator of the conflict not provoked by the recent guilty for using it as a reason for violence. If the instigator of a quarrel or fight was the victim, as well as in the case when the reason for the conflict was his misconduct, the perpetrator can not be held responsible for murder from hooligan motives, there is the main composition of intentional deprivation of life.
Part 2 provides 12 points describing different types of qualified murders. They can be grouped by elements of the crime.
Qualifying features that characterize the object (Appendix 1). Murder:
- two or more persons (item " a");
- a person or his relatives in connection with the performance of this person's official activity or the performance of a public duty (item " b");
- a person who is known to be in a helpless state for the guilty person (p. " b");
- a woman who is known to be pregnant for the culprit (item "d").
Describing the objective side. Murder:
- involving the abduction of a person or the taking of a hostage (item " b");
- committed with extreme cruelty (p. " d");
- committed in a generally dangerous way (item " e");
- associated with robbery, extortion or banditry (p. " z");
- involving rape or violent acts of a sexual nature (item "k").
Characterizing the subject. Murder:
- committed by a group of persons, a group of persons by prior agreement or an organized group (item "g").
Characteristics of the subjective side (Appendix 2). Murder:
- from selfish motives or for hire (p. " z");
- from hooligan motives (p. " and");
- in order to conceal another crime or facilitate its commission (p. " k");
- on the grounds of national, racial, religious hatred or enmity or blood feud (p. " l");
- for the purpose of using the organs or tissues of the victim (item "m").
In cases where the murder is accompanied by several qualifying signs provided for by different paragraphs of Part 2 of Article 105 of the Criminal Code of the Russian Federation, the deed must be qualified for all these points. In such cases, the penalty for each item is not assigned separately, but when choosing it, the court must take into account the presence of several qualifying circumstances.
Part 2 should not be applied due to the existence of competition rules, when the murder is accompanied by both reinforcing (qualifying) and reducing the danger of the circumstances provided for in Article 106-108. Preference in this case is given to the latter.
Murder of two or more persons (item "a").
In the case of the murder of two or more persons (item "a"), there is one crime. The actions of the perpetrator are covered by a single intent and are usually committed simultaneously. If the criminal intent was not realized due to circumstances that do not depend on the will of the perpetrator, the act is qualified under Part 3 of Article 30 and paragraph "a" of Part 2 of Article 105 or (if at least one person died) and under Part 1 of Article 105 (in the absence of other qualifying signs).
Murder of a person or his relatives in connection with the performance of this person's official activity or the performance of a public duty (item "b"). This qualified type assumes a special victim: it is a person who performs official activities or performs a public duty. In the current Code, in comparison with the Criminal Code of 1960, the circle of victims is expanded by referring to close persons.
Relatives are understood not only as relatives (parents, children, etc., as well as a spouse), but also other persons whose life, health and well-being are not indifferent to the victim due to the established relations, in whose fate he is interested (for example, foster parents, stepdaughter, cohabitant, etc.).
Under the implementation of official activities, it is necessary to understand the actions of not only an official, but also any employee, and not only working in the public service system or in local self-government bodies, but also in other institutions and organizations (for example, secretaries, assistants, assistants, private security guards, etc.).
It is also important that the activity carried out by the person is related to the scope of his official duties and is legitimate, does not contradict the interests of the service. Hence, if a person is deprived of life in retaliation for his misconduct, paragraph "b" of Part 2 does not apply. The act must be qualified under part 1 of Article 105 or Article 107 or Article 108.
Another feature of this qualified type of murder is its implementation in connection with the official activities of the victim. This means, firstly, that a person is deprived of life on the basis of dissatisfaction with his official activities and, secondly, deprivation of life is conceivable not only at the time of performance of official duties by the victim, but also before and after that. This feature is also characteristic of the situation when a person performs a public duty.
Under the performance of public duty is understood as the implementation of a citizen as a specially assigned public duty (public controller, vigilante, senior at the entrance, house, etc.), and the commission of other socially useful actions in the interests of society or individuals (for example, a person reports to the police about a crime committed by another person, tries to stop the offense, a witness or victim testifies, incriminating a person in committing a crime, etc.).
The motive and purpose of the guilty person's behavior are specific. Murder is committed in connection with dissatisfaction with the official or public activities of a person and is carried out either with the aim of obstructing the lawful activities of the victim, or to avenge the activities already carried out.
The murder of a person known to the perpetrator in a helpless state (paragraph "C"), and women whom the perpetrator knows to be pregnant (item "g").
They combine both of these qualifying features, firstly, the presence of special qualities in the victims and, secondly,the knowledge of such qualities by the guilty. It is no coincidence that in the list of aggravating circumstances, they are set out in one paragraph (paragraph " h " of Part 1 of Article 63); however, here the knowledge of the helplessness of the victim's condition is not mentioned and, in addition, along with helplessness, it is said about the helplessness of the person. It seems that the wording of paragraph " b " of Part 2 of Article 105 in this regard looks preferable, because defenselessness leads to a helpless state of the person.
Such persons should include first of all seriously ill (including postoperative), elderly infirm persons and minors (excluding the murder of a newborn child by a mother-Article 106), as well as persons suffering from such mental disorders that deprive them of the ability to correctly perceive what is happening. In a helpless state, the victims are not able, due to their physical or mental state, to protect themselves, to actively resist the killer, to avoid reprisals, which is recognized by the guilty. As a result, the commission of a crime is facilitated, the possibility of causing harm increases; inevitably, such unsightly aspects of the guilty person's personality as his exceptional immorality and callousness are reflected, because we are talking about people who need special protection, care, and care.
Infirmity can also occur due to a severe degree of intoxication, unconsciousness of the face, sleep. Practice sometimes follows the path of imputation and in this case P. "b", although it is unlikely that there is a noticeable increase in the level of public danger of the deed. On the contrary, it can be argued that in such situations the victim does not experience the torment and suffering that usually accompany murder.
All the more controversial is the proposal to further expand the content of this qualifying feature by indicating in paragraph "b" not only a helpless state, but also a life-threatening situation. In the case of murder, such a situation always arises for the victim, and, consequently, any deprivation of life must be recognized as committed under circumstances that increase responsibility.
The indication of knowingness as a subjective sign means that the perpetrator is not just aware, but knows that the victim is in a helpless state, is infirm and such a state facilitates the crime, favors murder, is used by the guilty.
In contrast to this qualifying feature, which was absent in the Criminal Code of 1960, the circumstance provided for in paragraph " d " is not new. The increase in responsibility for murder in this case is due to the fact that the harm is doubled - both the woman and her fetus are deprived of life. At the same time, neither the duration (timing) of pregnancy, nor whether the fetus remained alive or also died as a result of the murder of the woman, matter for qualification.
To impute the culprit P. " g " it is necessary to establish their knowledge that the victim was in a state of pregnancy. This may be evidenced by external or other data.
Murder involving kidnapping or hostage-taking (item "b"); robbery, extortion or banditry (item" z"); rape or sexual violence (item"k").
The first two qualifying features were absent in the 1960 Criminal Code. What unites them is that in all cases there is a combination (conjugation) of murder with other acts that are themselves recognized as independent types of crimes and belong to the category of serious or especially serious, namely: kidnapping, hostage-taking, robbery, extortion, banditry, rape, sexual violence.
Conjugacy means that the specified acts either precede the murder, or coincide with it in time of commission, or the murder follows immediately or shortly after the commission of such acts. In the first two cases, the deprivation of life is objectively a means to facilitate the commission of these acts, thus overcoming the resistance of the victim; but the motive of revenge is also possible. In the third case, the murder is committed either out of revenge, or in order to hide the crimes committed-robbery, rape, etc. (if there is a goal to hide the murder or facilitate its commission, the item "k" should be imputed. 2).
The above indicates that initially a person may not have intent to kill: in this case, it occurs in the process or even after the implementation of acts of hostage-taking, extortion, etc. Murder associated with the above-mentioned acts can be committed with both direct and indirect intent, both premeditated and sudden, both definite and indefinite.
Conjugacy means, further, that the victim of the mentioned acts (sexual violence, robbery, etc.) and the victim of murder may not coincide. For example, a person who tried to prevent the commission of a rape or who witnessed such a crime is deprived of his life.
Finally, conjugacy also means that not one, but two objects are violated: in addition to life-human freedom, property relations, public security. Therefore, in all such cases, it is necessary to qualify the offense as guilty under paragraph "b", "z" or " k " of Part 2 of Article 105.
Murder committed with extreme cruelty (item "d"). According to sample data, more than 48% of the qualified murders are those committed with extreme cruelty. At the same time, due to the different interpretation of this feature, many mistakes are made in practice (Bulletin of the Supreme Court of the Russian Federation. 1993. N 3. P.13), and not by chance, since it belongs to the category of evaluation.
There is a distinction between the manifestation of special cruelty before, during and after the murder. In the process of execution, it can be expressed in torture, torture, mockery and other actions that deeply humiliate the dignity of the victim. The intention to take a life may arise immediately after these actions, but even then there is no need to qualify for the totality, since they are links in the same chain-murder.
Special cruelty after the deprivation of life can be expressed in mockery of the corpse, cannibalism. Previously, the practice clearly considered such behavior as a kind of special cruelty, which was hardly true, since the law says about murder with special cruelty, and not about deprivation of life, "coupled" with manifestations of special cruelty. The Plenum of the Supreme Court adopted the following position (paragraph 8 of the decision of 27 January 1999). N 1): without including mockery of a corpse in the range of varieties of the qualifying feature, he at the same time pointed out that the destruction or dismemberment of a corpse for the purpose of concealing a crime cannot serve as a basis for qualifying a murder as committed with special cruelty. It turns out that the qualification under item "d" is not excluded, when the destruction or dismemberment of the corpse is carried out not for the purpose of concealing the crime, but for other reasons, including due to the sadistic tendencies of the killer. Following the same logic, and the cannibalism of the killer should entail responsibility for item "d", which is hardly true.
Special cruelty in the process of deprivation of life is most often expressed in a method that is particularly painful for the victim: the use of painfully acting poison, burning a person alive, prolonged deprivation of food, water or heat, preventing the victim from helping a bleeding person, etc. The common thing that unites these methods, as well as torture, torture, is causing obviously unnecessary suffering, not caused by the purpose of deprivation of life.
From these positions, it is necessary to assess the legal significance of multiple injuries: in most cases, the murder is recognized as committed with special cruelty on this basis. Often the infliction of a large number of injuries is regarded by practice as an indisputable evidence of the manifestation of special cruelty in murder. In reality, it is necessary to consider other circumstances as the application of a large number of injuries can be explained, particularly, weak physical force in committing murder of a person, the small destructive power of the weapon or means of killing (especially by the guilty). The multiplicity of blows, wounds may not cause the victim any special torment and suffering (for example, when they are applied in the heat of struggle; due to the instantaneous, rapid application, entailing instant death; when the first or one of the first wounds caused the death of the victim and subsequent blows were applied to the dead body).
Theory and practice connect the concept of special cruelty both with the method of murder and with other circumstances that indicate the manifestation of extreme callousness by the culprit , as a rule, with the situation (murder in the presence of persons close to the victim, when the culprit was aware that his actions caused them special suffering).
Special cruelty testifies to exceptional heartlessness, ruthlessness, enjoyment of other people's suffering. Therefore, although the qualifying feature under consideration is objectified by the deed, it invariably carries a subjective color. In the acts of judicial interpretation various terms are used to refer to the subjective perception of the murderers, acting with cruelty: "the perpetrator acted with the intent to commit a crime with particular cruelty," "victim known to the perpetrator suffered particular anguish or suffering", "the offender knowingly permitted the violence of their actions," "the perpetrator was aware of to cause the victim particular suffering." The last expression (paragraph 2 of paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 N 1) seems to be the most adequate to reality.
As for such an outcome as deprivation of life (causing death), the subjective attitude to it can be expressed in the form of both direct and indirect intent.
Murder committed in a generally dangerous manner (item "e"). Its classification as a qualified type is explained by the fact that with this method of deprivation of life, not one, but several victims, objects of criminal legal protection, are put at risk, thus increasing the volume (mass) of harm. In addition, the probability of achieving a criminal result - the death of the victim-increases.
For a correct understanding of a generally dangerous method, it is important to have a clear understanding of the range and nature of the means used. Theory and practice refer to them: fire, explosive, toxic, suffocating, radioactive, flammable substances, explosive devices, etc. All these means are characterized by the fact that they have a significant damaging and destructive force, are able to affect a number of objects.
If in the process of committing a crime, the generally dangerous properties of the means are not used, it is impossible to talk about a generally dangerous method of action (for example, in a situation where a criminal strikes with the butt of a gun for the purpose of depriving life). But, on the other hand, the use of generally dangerous properties of the means of murder is not an indisputable evidence of the use of a generally dangerous method by the perpetrator. The latter, within the meaning of the law, is present if the mentioned means are used in conditions under which their use creates a real possibility of causing harm to several direct objects, victims at the same time.
Therefore, for example, murder by burning the victim in a furnace can not be considered committed in a generally dangerous way. This method was not found by the Supreme Court of the Russian Federation in the actions of S., who at close range fired a aimed shot with a shotgun charge at K., who was standing near other persons (Bulletin of the Supreme Court of the Russian Federation. 1996. N 5. P. 7).
The types of deprivation of life qualified under paragraph "e" of Part 2 of Article 105 include murder by explosion, arson, firing shots in crowded places, poisoning of water and food, public sources, collapse, etc.
The concept of a publicly dangerous method, therefore, assumes a certain category of resources and appropriate conditions for their application in which these tools are implemented, endangering the multiplicity of criminal consequences (Bulletin of the Supreme Court. 1974. # 8. P. 14-15). Generally dangerous means that in a particular case it represents a general danger for many people.
There are allegations that a dangerous method is present in a situation when applied by a killer weapon is objectively able to cause harm only to one object (person), but because of the arisen situation will be caught in the kill zone. For example, the perpetrator throws a knife at the victim, next to whom is another person. This understanding leads to the identification of two different phenomena: the commission of actions in a generally dangerous way and the rejection of actions. It is the danger of simultaneous destruction of not one, but a number of objects (victims) by one act that determines the essence of a generally dangerous method.
Therefore, if, say, a shot is fired into a crowd, for the purposes of qualification, we cannot limit ourselves to stating this fact. It is necessary to establish what specific means of destruction the culprit used (bullet, shot, etc.), whether it was able in this particular situation to cause death to several victims at the same time and what exactly. In paragraph 9 of the resolution of Plenum of the Supreme Court of 27 January 1999 No. 1 emphasized that this method of causing death is to create a "danger to life not only the victim, but at least one person."
Qualifying murder as a circumstance is recognized in itself as a generally dangerous method, and not the consequences of its use. Therefore, for the imputation of item "e", it is necessary and sufficient to establish that there was a use in the process of encroachment on life of a method that threatened to simultaneously hit a number of objects, persons. When causing actual harm to other objects, victims, the guilty person should be qualified in addition to paragraph " e " of Part 2 of Article 105 and under the articles providing for liability for causing such harm. For example, in case of harm to health - according to art. 111, 112, 115, and in the case of the murder of several persons - and under item " a " of Part 2 of Article 105.
In cases where the murder by arson, explosion, etc. was associated with the destruction or damage of other people's property, forests or plantations not included in the forest fund, the act must receive additional qualification under Article 167 or 261.
The question of the subjective side of killing in a generally dangerous way is debatable. The usual, most common scheme in practice is direct intent to kill a certain person and indirect-with respect to side effects. But it is possible and general indirect, and unconcretated intent (the perpetrator commits indiscriminate shooting in a public place or hooligan motives directs the car in the direction of people).
Murder committed by a group of persons, a group of persons by prior agreement or an organized group (item "g"). Group murders are not only common, but also more dangerous, because it makes it easier to achieve a criminal result, taking the life of the victim.
Murder should be considered committed by a group of persons (simple, by prior agreement, organized-for the concept of them, see the commentary to Article 35), if two or more persons took part in this crime. The expression "participated" means that persons, aware of the nature of the crime committed, directly participated in the process of depriving the victim of life by using violence against him. Participation can be expressed not only in inflicting fatal blows, giving poison, etc., but also in other violent actions aimed at suppressing the will of the victim or at depriving him of the actual opportunity to resist.
An attempt on life should be recognized as committed by a group of persons and in the case when another person joined in the commission of the killer's actions aimed at intentionally causing death. If with conspiracy to commit murder along with co-perpetrators of a crime group can include other parties that can perform the functions of the organizer, instigator or accomplice (par. 3 paragraph 10 of the resolution of Plenum of the Supreme Court of 27 January 1999 No. 1). Controversial, however, is the recommendation on the qualification of the actions of such persons under the relevant part of Article 33 and paragraph "g" of Part 2 of Article. 105 (ibid.), because if these persons are part of a group, the additional reference to article 33 on complicity seems inappropriate. It is not necessary to refer to Article 33 in the case of murder with the distribution of roles in an organized group.
The murder from mercenary promptings or on hiring (item "z"). For a long time in theory and practice, this feature was interpreted broadly: it included not only incentives aimed at obtaining material benefits for the perpetrator or other persons (money, property or rights to receive it, rights to housing, etc.) or getting rid of material costs (return of property, debt, payment of services, fulfillment of property obligations, payment of alimony, etc.), but also "other"ones. Now the reference to the last kind of selfish motives ("other") is excluded from the guiding explanation of the Plenum of the Supreme Court of the Russian Federation, which should be recognized as correct.
For the imputation of P. " z " it is not necessary that the guilty person as a result of the murder received a material benefit or got rid of material costs. The selfish motives that guided the killer in taking the victim's life are important in themselves.
In the Criminal Code of 1996, along with the deprivation of life from mercenary motives, such a variety as murder for hire is also distinguished, i.e., due to the receipt by the perpetrator of the crime (killer) of material or other remuneration. In the vast majority of cases, the deprivation of another person's life for hire is murder out of self-interest. However, situations are conceivable when a mercenary is guided by other motives, for example, commits a murder out of solidarity or for reasons of struggle with non-believers.
Those who organized the murder for remuneration, incited to perpetrate or execute the function of the accomplice are liable for the corresponding part of article 33 and paragraph "h" of part 2 of article 105 (para. 2 clause 11 of the resolution of Plenum of the Supreme Court of 27 January 1999 No. 1).
Murder from hooligan motives (p. "i"). Most lawyers pay attention to such a property of hooligan motives as mischief, rude mischief.
But this property does not exhaust the analyzed concept: being an open challenge to society and others, the behavior of a bully is due to the desire to oppose himself to people, to show a disdainful attitude towards them, to demonstrate brute force, often - drunken prowess.
Most often murder out of hooliganism committed with no apparent reason or using a minor reason, i.e. due to a mismatch of the last response that confesses and guilty. The absence of a visible reason leads some lawyers to the conclusion that an unmotivated deprivation of life is being committed. In fact, there are hooligan motives behind this, which must be revealed and proved.
Sometimes the conclusion about the presence of hooligan motives is made based on the place of the murder (public place). This approach is wrong, and therefore the deprivation of another person's life out of jealousy, revenge and other motives that arose on the basis of personal relationships, regardless of the place of its commission, cannot be qualified under paragraph " i " of Part 2 of Article 105 of the Criminal Code.
If the offender, in addition to murder with hooligan motives, committed other acts that contain signs of offence under article 213, criminal conduct should be qualified according to the rules on multiple offenses (par. 2 paragraph 12 of the resolution of Plenum of the Supreme Court of 27 January 1999 No. 1).
Murder for the purpose of concealing another crime or facilitating its commission (item "k"). The mentioned type of act is generally aimed at concealing a serious or particularly serious crime. But this can be an act of medium or even small gravity. For the imputation of p. "k", it does not matter who - by the murderer himself or by another person - committed (or is being committed) such a crime, whether it is finished or not finished.
Since the legislator associates the type of murder described with a specific purpose, it can only be committed with direct intent. At the same time, for the statement of the completed composition of the murder, it does not matter whether the perpetrator managed to achieve the goal as a result of the deprivation of the victim's life. It is important that the guilty person has it.
The legislator has identified two types of goals: to hide another crime and to facilitate the commission of another crime.
The purpose of concealing another crime is present when, even before the murder, the subject or other person committed a crime that at the time of the murder is still unknown to law enforcement agencies (at least in the view of the killer). The victim may be a victim, an eyewitness to the crime committed (for example, robbery, kidnapping), as well as any other person who has information about such a crime and can help to detect and solve the crime.
The purpose of facilitating the commission of a murder crime is obvious when the deprivation of life precedes the implementation of the intended crime or coincides with the last one in time.
In paragraph 13 of the resolution of Plenum of the Supreme Court of 27 January 1999 No. 1 States that the meaning of the act, the qualification of murder under paragraph "to" exclude the possibility of qualification of the same crime, in addition to the specified item under any other paragraph of part 2 of article 105, providing for a different purpose or motive. Therefore, if it is established that the deprivation of life was committed, for example, from selfish or hooligan motives, it cannot simultaneously be qualified under item "k".
Murder motivated by national, racial, religious hatred or enmity or blood feud (item "l").
In item " l " there are several qualifying circumstances, one of which is sufficient for the imputation of this item in the case of murder. What they have in common is what is sometimes called " remnants of the past." The first three circumstances characterize intolerance towards persons of another nationality, race, religion and its representatives, based on the ideology of superiority of one's own and, on the contrary, on the inferiority of all other nations, races, and confessions.
Hence, it is not enough to establish that the killer and the victim belong to different nationalities, races, etc. It is important that there is hostility or hatred on this ground (at least on the part of the perpetrator) at the time of the attack and that this is the motive for the murder. It is not excluded, therefore, in a particular case, a conflict situation between persons of warring nationalities on a different basis, for example, on domestic grounds - they did not share a plot for grazing cattle, did not agree on the rules of water use, etc.
As a general rule, the victims of a crime are representatives of a different ethnic group or denomination than the one to which the perpetrator belongs. Although it is also possible that a co-religionist or a person of the same nationality becomes a victim (in the case, for example, of revenge for passivity, conciliatory attitude towards non-believers, or murder in order to lay the blame for the deed on the hostile side and thereby incite or strengthen hostility).
Blood feud is a custom that exists among some peoples of the North Caucasus. According to it, the victim himself or relatives of the "offended" are "obliged" to take revenge on the offender by serious insult, abuse, murder, etc. Often this causes a chain reaction, because, in turn, in the case of revenge, the other party has the right to consider itself offended and obliged to carry out a retaliatory act of blood revenge.
Murder for the purpose of using the organs or tissues of the victim (item "m").
This qualifying circumstance is new, unknown to the previous criminal legislation. Its appearance is explained by the expanded capabilities of medicine for organ and tissue transplantation and, accordingly, the increased need for donor material.
Victims of a crime can be: persons who are being treated; persons who have been admitted to a medical institution from the scene of an accident (accidents, catastrophes, fights, etc.); other persons.
The subject of the crime (executor, co-executor) is usually medical workers, since special knowledge is required for the removal of organs or tissues during the murder or after it. But another person can also perform such a murder, for example, using the advice of a specialist.
On the subjective side, the analyzed type of crime is committed only with direct intent and a special purpose - the use of organs or tissues of the victim. At the same time, it does not matter whether the perpetrator managed to achieve these goals. The concept of organs and tissues is given in the Law of the Russian Federation of December 22, 1992 N 4180-1 "On transplantation of human organs and (or) tissues". These include, firstly, those included in the list approved by the Ministry of Health of the Russian Federation; secondly, those related to the process of human reproduction; and thirdly, blood and its components.
The murder in the mentioned order perhaps out of greed - they are the dominant, and from other motives (to provide a medical experiment to save the life or health of a close person etc.). If the goal of using organs or tissues of the victim in the murder combined with selfish motives, then their actions should be qualified on set p. "m" and "h" of part 2 of article 105.
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)
2. The Law of the Russian Federation of December 22, 1992 N 4180-1 "On transplantation of human organs and (or) tissues" - Air Force of the Russian Federation. 1992. N 2. St. 62.
3. Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1 "On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation) - Bulletin of the Supreme Court of the Russian Federation. 1999. N 3. P. 4
4. Resolution of the Plenum of the Supreme Court of the USSR of August 16, 1984 No. 14 "On the application by courts of legislation ensuring the right to necessary defense against socially dangerous encroachments.
5. The Plenum of the Supreme Court in its decision of January 27, 1999 N 1 "About court practice on Affairs about murder (item 105 of the criminal code of Russian Federation)" - the Bulletin of the Supreme Court. 1999. N 3. P. 4.
6. Collection of current resolutions of the Plenums of the Supreme Courts of the USSR, RSFSR and the Russian Federation on criminal cases with comments and explanations. M., 1999. P. 62
7. Bulletin of the Supreme Court of the Russian Federation. 1997. N 3. P. 8.
8. Bulletin of the Supreme Court of the Russian Federation. 1994. N 6. P. 6.
9. Bulletin of the Supreme Court of the Russian Federation. 2003. N 6. P. 15.
10. Bulletin of the Supreme Court of the RSFSR. 1991. N 6. P. 6.
11. Bulletin of the Supreme Court of the RSFSR. 2002. N 1. P. 20.
12. Berdichevsky F. Yu. Criminal liability of medical personnel for violations of professional duties. Moscow, 1970. pp. 86-87.
13. Borodin S. V. Responsibility for murder: qualification and punishment. Moscow, 1994. p. 8.
14. Commentary to the Criminal Code of the Russian Federation: (article by article)/V. K. Duyunov et al., ed. by L. L. Kruglikov. - Wolters Kluwer, 2005.. Commentary to article 105
15. Commentary on the Criminal Code of the Russian Federation / Ed. by V. M. Lebedev. - 3rd ed., add. Moscow: Yurayt-Izdat, 2004.
16. Course of Soviet criminal law. Part Special. T. 3. L., 1973. P. 478.
17. Kudryavtsev V. N. General theory of crime qualification. 2nd ed. Moscow, 1999. p. 146.
18. Shabalov N. P. Neonatology. Textbook. In 2 vols. Vol. 1. St. Petersburg, 1995. pp. 15-26.
19. Shargorodsky M. D. Crimes against life and health. Moscow, 1948. p. 38.