By virtue of clause 13 of the Resolution of the Plenum of the RF Armed Forces dated June 15, 2006 No. 14 "On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and poisonous substances" under the illegal sale of narcotic drugs, psychotropic substances or their analogues, plants containing narcotic drugs or psychotropic substances, or their parts containing narcotic drugs or psychotropic substances, it should be understood any means of their reimbursable or gratuitous transfer to other persons (sale, donation, exchange, payment of debt, lending, etc.), and also other ways of implementation.
The intent to sell these drugs, substances or their analogues, plants containing narcotic drugs or psychotropic substances or their parts containing narcotic drugs or psychotropic substances may be evidenced if there are grounds for that. purchase, manufacture, processing, storage, transportation by a person who does not use them himself, their number (volume), placement in packaging convenient for sale, or the presence of an appropriate agreement with consumers, etc.
It is necessary to proceed from the actual circumstances of the crime, as well as intent.
If it is established that several "bookmarks" (retail sale) of narcotic drugs are sold from one batch, then it is wrong to qualify these actions as several independent crimes.
This position is based on the fact that initially there was a single intent aimed at selling the entire purchased consignment of narcotic drugs.
Thus, it is necessary to qualify as one single crime related to the illegal sale of narcotic drugs.
The above position is confirmed by the Review of judicial practice in criminal cases of the Armed Forces of the Russian Federation for the first half of 2014, approved by the Presidium of the Supreme Court Russian Federation July 2, 2014.
According to clause 2.2. The review of judicial practice in criminal cases of the Armed Forces of the Russian Federation for the first half of 2014, the actions of a person related to preparation for the illegal sale of a narcotic drug were erroneously qualified by the court as two independent crimes.
By the verdict of the Nagatinsky District Court of Moscow dated October 13, 2009, B. was convicted of two crimes under Part 1 of Art. 30, item "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation.
In the supervisory complaint, convict B. asked for the court decisions change, qualify his actions as one crime under Part 1 of Art. 30, item "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation, mitigating the punishment.
The panel of judges partially satisfied the complaint on the following grounds.
As can be seen from the circumstances of the case established by the court and given in the verdict, the narcotic drug, heroin, illegally acquired by B. and his accomplice, with a total weight of 13 577.19 g, was packaged by them in sealed packages convenient for illegal sale - 15 bottles made of polymer material. Of these, 8 bottles of heroin with a total weight of 7,953.31 g were buried by them in the ground and discovered by officers of the Federal Drug Control Service of Russia on May 19, 2008, another 7 bottles with heroin with a total weight of 5,623.88 g were hidden in hiding places in the car, detained on April 24, 2008 at a traffic police post.
Qualifying B.'s actions under Part 1 of Art. 30, item "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation, the court indicated in the verdict that he had committed two crimes related to the preparation for the illegal sale of a narcotic drug (in this case heroin) on an especially large scale, by a group of persons by prior conspiracy.
At the same time, the court indicated that B.'s intention to prepare for the illegal sale of the drug is evidenced by the fact that he and the accomplice had hidden part of the drug in a cache in the forest belt, and the other part in the car.
Thus, the court, in essence, recognized that the convicted persons had committed one crime related to illegal drug trafficking, which he and another person divided into two parts, but qualified his actions as two independent crimes.
In connection with the foregoing, the qualification of the above actions of B. as two independent crimes in preparation for the illegal sale of narcotic drugs was recognized by the Judicial Board as incorrect and re-qualified B.'s actions from Part 1 of Art. 30, item "g" part 3 of Art. 228.1 and part 1 of Art. 30, item "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation, part 1 of Art. 30, item "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation (Definition of January 15, 2014 N 5-D13-65).
Attention! The information provided in the article is current at the time of its publication.
The first rule is that the deed must be directly provided by the criminal law as. This rule is based on the principle of legality, enshrined in Art. 3 of the Criminal Code of the Russian Federation, according to part 1 of which "the criminality of the act, as well as its punishability and other criminal-legal consequences are determined only by this Code", and part 2 - "the application of the criminal law by analogy is not allowed"
In accordance with this rule, it is necessary that the committed act be described in the Special Part of the Criminal Code of the Russian Federation, including with reference to other or other non-criminal laws and (or) other regulatory legal acts or international treaties of the Russian Federation, and met the requirements established in the norms of the General part of this Criminal Code.
In the course of an accident, I received bodily harm, which did not entail. harm to health, namely citizen K., moving his backside, touched my leg. This is where it all started. As a result, I reprimanded him. During which he began to resent and insult me. I note that it struck me right away that he was in some kind of insanely aggressive state, possibly drunk or drug intoxication, such a feeling that he wanted to attack and beat someone.
To qualify a crime, speaking in legislative language, means nothing more than to establish a relationship between the committed act and the composition of the very, established by the framework of the law. Qualification, in this case, is a dynamic process, since at certain stages of the investigation, the qualification itself will change in accordance with the characteristics and specificity of actions.
At the beginning of an investigation into fact, very often there is no availability of the necessary information on, but in the course of the investigation, such material accumulates and by the end of the investigation process, when an indictment is issued by the investigating authorities, there is a full amount of information on the crime committed.
Part 1 of Art. 34 of the Criminal Code of the Russian Federation establishes that the responsibility of accomplices is determined by the nature and degree of the actual participation of each of them in the commission of the crime. There is no doubt that the nature of the participation of each accomplice in the crime must be reflected in the qualifications of what he has done. However, the instructions of the Criminal Code require clarification.
The actions of the co-executors in accordance with Art.
Correct qualification is an indispensable observance of the principle of legality of the court, prosecutorial authorities, investigation and inquiry bodies. The concept and elements of the composition (objective and subjective aspects), its criminal law significance.
Qualification of a crime: concept and types, process, composition. The main features of the subject of a crime. The influence of the age of the perpetrator on qualifications.
(English qualified crime) - in the criminal law of the Russian Federation. having one or more signs directly provided for by the relevant article of the special part of the Criminal Code of the Russian Federation *, which indicate an increased social danger of a given criminal act in comparison with an unqualified (simple) type of the same. These signs are called qualifying ones and can relate to any circumstance that characterizes the crime: to the characteristics of the consequences that have occurred (large amount of damage, grave consequences, etc.); to the method of committing the crime (with the use of violence, danger to the life or health of many people, etc.); to the subject of the crime (commission of a crime by an organized group, etc.).
Visitors to the legal consultation asked 46 questions on the topic "Qualify". On average, the answer to a question appears in 15 minutes, and to a question we give a guarantee of at least two answers, which will begin to arrive within 5 minutes!
My relative was sentenced under Article 159 Part 4 to 7 years in prison. In the verdict, the judge qualified the crime as a single continued, although all the victims are different, the time of the commission is 05/17/2015
By a court verdict, a crime was qualified under article 159 part 4.
Qualification rules - techniques and methods used by a law enforcement officer in the process of qualification, which are based on the norms of the criminal law, decisions of the Plenum of the Supreme Court, judicial practice, as well as the doctrine of criminal law.
- Art. 8 of the Criminal Code, the deed must contain a specific composition, since the basis of criminal liability is the commission of a socially dangerous act containing all the signs of composition.
The negative and positive signs of the composition are highlighted.
In this paragraph, it is proposed to consider a typical (approximate) algorithm for qualifying a crime on the example of a specific life situation that took place in reality.
When solving the problem, one should proceed from the fact that the factual circumstances set forth in the plot have been established and proven.
It should also be remembered that the main issue requiring a criminal-legal assessment is the question of the qualifications of the deed by each of the persons mentioned in the content of the task.
In the process of solving, the main attention should be paid to the argumentation of the solution of the problem. It is important not only to give an accurate answer regarding the qualifications of the deed by this or that actor, but also to substantiate it in detail. At the same time, it is necessary to use both one's own ability to interpret the norms of the Special Part of the Criminal Code of the Russian Federation, and to resort to using the leading Resolutions of the Supreme Court of the Russian Federation on certain categories of criminal cases, as well as materials from judicial practice in similar cases. Arguments should be given both under the criminal law (legal argumentation) and on the facts set out in the problem (factual argumentation).
So, the plot of the problem:
Bobrov met Dedkova and met her several times, courted and showed all sorts of signs of attention. To his offer to enter into an intimate relationship with him, Dedkova responded with a resolute refusal. Then Bobrov, under the pretext of giving Dedkova a lift to her house in a car, drove her to the apartment of his friend Trunov, where, overcoming resistance, he committed violent sexual intercourse with her. Suggesting to Dedkova “to weigh everything thoroughly and stop fumbling,” Bobrov locked her in Trunov's apartment for the night, and the next day he arrived there and again tried to commit violent sexual intercourse with her, but could not do this due to Dedkova's active resistance. After she announced that she would commit suicide if Bobrov did not let her go, he allowed her to leave Trunov's apartment, warning her not to tell anyone about what had happened, otherwise he would “destroy” her.
The questions that follow from the condition of the problem require the qualification of the actions of Bobrov and Trunov.
Solution
(1) The circumstances of the case, set out in the plot of the problem, clearly allow us to assert that what Bobrov did infringe on the rights and freedoms of the individual and is associated with harm to such objects of criminal law protection as, first, sexual freedom and, secondly, second, the freedom of the individual itself. It follows from this that Bobrov's actions are covered by the norms of chapters 17 and 18 of the Criminal Code of the Russian Federation.
First of all, it is necessary to analyze the objective signs of what Bobrov did. It is quite obvious that in his actions there are signs of the following crimes infringing on human freedom: kidnapping (article 126 of the Criminal Code) and illegal imprisonment (article 127 of the Criminal Code). It should be borne in mind that these criminal law norms provide for related offenses, therefore they compete with each other and, according to the rules of qualification, when differentiating crimes, their simultaneous application is impossible - one of them will put the application in place. Since the objective side of the abduction of a person (Article 126 of the Criminal Code) includes not just his unlawful isolation (holding against his will in some place), but taking possession of a person and moving against his will to another place where the victim is also held unlawfully, Bobrov's actions are covered by this corpus delicti. Any socially dangerous consequences of kidnapping as a sign of the main corpus delicti are not foreseen. Judging by the condition of the problem, this kind of consequences did not occur in fact. Therefore, what Bobrov has done constitutes a completed crime.
The subjective side of kidnapping involves guilt in the form of direct intent and any (illegal in its content) purpose. Obviously, according to the condition of the problem, Bobrov was aware of the socially dangerous nature of the actions he was taking in relation to Dedkova and wanted them to be done, i.e. acted with direct intent. The immediate purpose of his actions was to secure the commission of another crime.
Apparently Bobrov has reached the age of criminal responsibility for this crime (14 years), and if he is recognized as sane, then he is subject to responsibility under Art. 126 of the Criminal Code of the Russian Federation.
(2) The next stage of qualifying the abduction of a person requires an answer to the question whether Bobrov's deed contains any aggravating (qualifying) signs specified in Part 2 or Part 3 of Art. 126 of the Criminal Code of the Russian Federation.
Proceeding from the fact that, according to the condition of the problem, it is not entirely clear how Bobrov forced Dedkova to leave the car and enter an unfamiliar apartment, one should assume one or another variant of events. For example, one can proceed from the fact that Bobrov, holding Dedkova by the hand by force, forced Trunov to follow him into the apartment, and she did not call anyone for help, since there were no strangers at that time; on the contrary, under another scenario of events, Bobrov threatened Dedkova with murder if she tried to shout and call for help, but did not demonstrate or use any weapons; finally, it can be assumed that Bobrov first showed Dedkova a knife and, threatening to use it if she screamed, led him from the car to Trunov's apartment. Each of these options requires an independent analysis and an appropriate criminal-legal assessment (qualifications under part 1 of article 126 or paragraphs "b", "c" part 2 of this article).
Equally, it is necessary to find out (in the statement of the problems this is not said) what was Dedkova's age. If she was not 18 years old, which he knew or that, at least, Bobrov allowed, then his actions must be qualified under clause "d" of Part 2 of Art. 126 of the Criminal Code of the Russian Federation.
Judging by the condition of the problem, it is necessary to draw a negative conclusion about imputing to Bobrov any of the aggravating circumstances provided for in Part 3 of Art. 126 of the Criminal Code (in particular, the onset of other grave consequences, since they mean, for example, suicide or attempted suicide of the victim or his relatives, caused by the fact of abduction; mental or other serious illness of the victim). Dedkova's statement that she will commit suicide of this kind is not a consequence of the abduction.
(3) According to the footnote to Art. 126 of the Criminal Code, a person who voluntarily released the abducted person is released from criminal liability, unless his actions contain a different corpus delicti. Since Bobrov personally released Dedkova, the question arises about the possibility of applying this note.
Within the meaning of the notes to Art. 126 of the Criminal Code, exemption from criminal liability can take place only if the person who kidnapped the person did not commit any other illegal act provided for by the Criminal Code in connection with this crime and acted voluntarily, and not compelled. According to the terms of the problem, the opposite takes place: firstly, Bobrov granted Dedkova freedom by committing her rape (i.e., his actions contain the elements of another crime), and secondly, he was forced to let her go, because Dedkova could commit suicide, which he knew from her.
(4) The next stage in the qualification of Bobrov's actions is associated with the assessment of his sexual intercourse with Dedkova. Since it follows from the condition of the problem that these actions were performed by him with the use of violence, i.e. apart from the will of Dedkova, who resisted him, there are signs of the objective side of rape (Article 131 of the Criminal Code). At the same time, Bobrov's actions do not see such a qualifying feature as the use of threats of murder or infliction of grievous bodily harm (clause "c", part 2 of Art. 131 of the Criminal Code), tk. neither in the process of overcoming the victim's resistance, nor as a means of preventing such resistance, the threat of murder was not used. However, this is exactly what is required for the imputation of the specified paragraph of Part 2 of Art. 131 of the Criminal Code. According to the clarification of the Plenum of the Supreme Court of the Russian Federation of April 22, 1992, given in the resolution on rape cases (paragraph 3), if such a threat took place after the rape in order to prevent the victim from reporting it, then the deed in the absence of other aggravating circumstances qualifies cumulatively h. 1 tbsp. 131 and art. 119 of the Criminal Code of the Russian Federation. The threat expressed by Bobrov to Dedkova to “destroy” her, depending on the specific circumstances, can be qualified as a threat of murder, but it is possible that these words meant a threat to defame the victim in the eyes of others (“destroy” as a person, compromise).
Establishing the subjective side of forced sexual intercourse, which includes guilt in the form of direct intent, in this case does not cause difficulties. However, if we assume that Dedkova was not 18 years old, then Bobrov should have known, or at least admit it. Only under this condition, his actions can be qualified under clause "d" of Part 2 of Art. 131 of the Criminal Code of the Russian Federation.
Based on the fact that Bobrov, as mentioned above, has reached the age of 14 and is sane, he is subject to responsibility for rape.
Aggravating circumstances under Part 3 of Art. 131 of the Criminal Code of the Russian Federation, judging by the condition of the problem, is not seen in Bobrov's actions.
(5) Necessary element qualification of Bobrov's actions (which at the same time has independent significance) is the solution to the issue of responsibility under Art. 126 and Art. 131 of the Criminal Code of the Russian Federation Trunov. He could have known about Bobrov's intention to kidnap Dedkova, as well as rape her and provide him with his apartment just for this. If such a version is substantiated and Trunov's guilt is proven, then what he has done constitutes complicity in the abduction of a person (but not co-execution), since he did not perform direct actions aimed at taking possession of Dedkova and keeping her in captivity. This means that his actions cannot be qualified under clause "a" of Part 2 of Art. 126 of the Criminal Code, and constitute complicity in Bobrov's crime, i.e. are qualified under Art. 33 and part 1 of Art. 126 of the Criminal Code of the Russian Federation. Other aggravating circumstances provided for in part 2 of this article may be imputed to Trunov only on the condition that they were covered by his intent. Thus, taking into account the specified qualification of Trunov's actions, Bobrov also cannot be charged with clause "a" of Part 2 of Art. 126 of the Criminal Code of the Russian Federation.
Equally, the imputation of Trunov's complicity in the rape of Dedkova is not ruled out, since by providing Bobrov with his apartment, he created the conditions for him to commit this crime (if it is proved that Trunov was aware not only of the fact of the upcoming abduction of the victim, but also the commission of forced sexual intercourse with her) ... He is not the perpetrator (co-perpetrator) of the rape, therefore clause "b" of Part 2 of Art. 131 of the Criminal Code cannot be imputed to him, and he is liable under Art. 33 and part 1 of Art. 131 of the Criminal Code of the Russian Federation.
Thus, Bobrov's actions are classified according to the totality of the following crimes: Part 1 of Art. 126 (if no aggravating circumstances provided for in Part 2 of this Article are established) and Part 1 of Art. 131 of the Criminal Code of the Russian Federation.
The theory of criminal law has recently established what constitutes a crime. In practice, this concept has been used for a long time, but there was no exact content and definition.
To understand what the composition is, what is the basis and how the crime is qualified, it is necessary to understand the concept itself.
A crime is an act or inaction (act) that is socially dangerous. In simple words- harm from this event is expressed in damage to interests that fall under the jurisdiction of criminal law.
For example, theft harms property rights that are accepted in society. The act that formally falls under but does not contain signs of public danger will not be a crime. For example, inflicting bodily harm on a maniac in order to protect children from him. If viewed formally, the action is subject to punishment, but it has no social danger, which means that there is no question of a crime.
The system of subjective and objective elements (signs) of acts (actions or inaction), provided for both in the hypothesis and in the disposition of norms, and characterizing a certain dangerous act as criminal, is called a crime.
Consists of a composition of 4 constituent subsystems:
The significance of the composition lies in the fact that it serves as the basis for the appointment of criminal liability. When any element of the composition is missing, criminal liability does not arise. For example, the act was committed by a person who was declared insane. In such a situation, there is no subject of the crime. This means that the verdict cannot be passed, since such a person is not prosecuted.
The composition and qualification of crimes in the criminal legislation are not disclosed. This term is used by investigative and judicial practice and the theory of criminal law.
It is customary to understand the composition of the combination of objective and subjective signs, which, according to the law, characterize a certain socially dangerous act as a crime.
The corpus delicti is a legislative image of a specific criminal act, which is described in specific articles of the Special Section of the Criminal Code.
Translated from Latin, "qualification" is quality. They talk about qualifications in relation to crimes in two senses:
In order to correctly qualify a crime, and then make the right decision regarding punishment, it is necessary to figure out how to divide the crimes.
Allocate the logical, philosophical, legal, psychological basis of qualifications.
In the field of criminal law, qualification is understood as the establishment of the conformity or equality of the characteristics that the committed dangerous act has with the signs that are provided for by law.
The conclusion about whether there are such signs and whether they correspond to those described is made on the basis of a comparison of the act with the existing norms. The comparison is made only on one basis of generally recognized criminal law standards, other signs are not taken into account.
The very concept of corpus delicti is influenced by the qualification of the crime.
For example, for the corpus delicti in illegal hunting, the attribute “crime scene” is considered mandatory. The decision made on the issue will depend on him.
Qualification is an assessment of the criminal-legal nature of those factual circumstances in the case that took place. Correctly established qualifications depend on the correct establishment of the circumstances.
A crime is qualified in the course of a preliminary investigation (inquiry, preliminary investigation), as well as a trial, and then a sentence. Also, the assignment of qualifications is included in the tasks of supervisory and cassation proceedings in criminal cases. Conclusions that the act contains a corpus delicti that complies with the established criminal law norms are reflected in the documentation:
In these documents, the names of all articles under which the crime falls are recorded in detail and accurately.
Determination of corpus delicti and qualification of crimes is one of the most crucial moments in the work of law enforcement agencies. The law enforcement officer is vested with the broadest powers in matters of decision-making on the qualification of a crime.
The same moment stipulates full responsibility for the decision taken by the law enforcement officer in the case.
The problems of qualifying crimes in terms of their composition still exist, despite numerous attempts to carry out a clear classification. The establishment in an act of signs of a specific corpus delicti can be achieved only by qualifying a crime. Here it acts as a justification from the point of view of law, according to which a person is brought to criminal responsibility, coercive measures are applied, charges are brought, punishments are determined or punishment is executed.
As a result, qualification is not only a reflection of protective criminal law relations, but also reflects adjacent criminal executive and criminal procedural relations.
Correct qualification is the key to delivering the right verdict.
The corpus delicti and the qualification of crimes at the time of its definition imply the division of the qualification process into different subtypes. The corpus delicti is the basis for qualifying the crime.
Qualification types:
During the qualification of crimes, several actions are performed:
The correct qualification of a crime makes it possible to clarify the issue of the presence or absence of criminal liability, and also allows the court to determine a just punishment for the committed act.
The qualification of corpus delicti with evaluative features is an important stage in the analysis of the act.
Evaluation signs are variable. Their content significantly depends on what kind of legal awareness is observed in the lawyer who applies the law. These signs are the closest to the constantly changing situation, which has to be assessed by the investigating authorities, the prosecutor's office and the court. And with a certain degree of convention, they are usually called "evaluative" features.
An example of a typical evaluative feature would be an indication of "significant harm" that is caused by abuse of power, public or state interests, as well as interests that are protected by law, public interests and the interests and rights of citizens.
Since the very concept of “substantial harm” is not disclosed in the Criminal Code, the final decision on whether the crime itself is substantial or not is made only by the court.
The corpus delicti and the qualification of crimes are one of the most crucial stages in all judicial proceedings. At the same time, evaluative concepts are a reflection of the relationship between objects or phenomena, and also characterize the result of comparing an object with a certain sample (standard or etalon).
It should be noted that the concept of a standard as applied to crimes is considered very specifically.
First of all, it is to be the basis for incurring criminal liability. This means that a person, in whose act there is a corpus delicti, is subject to criminal prosecution by the prosecutor's office, the court and the investigation, and the person himself is not obliged to bear such responsibility.
The second function that corpus delicti has is to help qualifications. The value of the corpus delicti for the qualification of crimes consists in establishing the necessary conformity, identity, identification of the offense with the characteristics of the corpus delicti, which are provided for in the legal norm.
A well-defined corpus delicti has social and criminal law significance.
The value of corpus delicti for the qualification of crimes of a general social nature lies in the expression of a negative assessment of society on the totality of signs that form a certain corpus delicti. Also, the state can express its attitude to this issue.
The criminal law significance is expressed in a number of different points.
Unfortunately, the qualification of an act according to the composition of crimes may have errors.
Qualification errors are incorrectly established absence or presence of signs of corpus delicti, as well as compliance with its description in parts of the Criminal Code of the Russian Federation (definition by N.F. Kuznetsova). Such errors are of a criminal-legal nature, in contrast to criminal-procedural ones. The main sources of such errors are deficiencies in law enforcement and inadequacies in legislation.
Qualifying errors are summarized in three groups:
The qualification of related offenses has certain difficulties.
Adjacent compounds are related in the nature of the danger they pose to society, and also differ in one or more common characteristics. There are at least 150 related crimes in the Criminal Code.
To qualify such crimes, it is important to highlight the elements that will delimit them. For example, in the case of theft of someone else's property, the form of appropriation of someone else's will serve as the separating signs. If theft is secret theft, robbery is open, and robbery is violent.
Related crimes of a service nature are different objects - the interests of service in different organizations, against the interests public service, justice, military service.
The qualification of crimes on the basis of corpus delicti in related cases, as well as the determination of the kinship of actions, make it possible to define such a concept as repeated convictions and crimes. This means that there can be several objects. Criminologically, this decision is quite justified.
The corpus delicti, the types of corpus delicti, the qualification of a crime in the aggregate form the only basis for determining criminal liability. They serve as the correct legal qualification to which a criminal act is subject, and are also the basis for the court to determine the amount of punishment, its type and severity, and also to be able to establish another measure of criminal liability.
An accurate and correct definition of the corpus delicti is one of the guarantees that the rights and freedoms of a person and citizen will be protected, law and order will be observed and strengthened, and the state will continue to have signs of democratic and legal.
Patients' rights on paper and in life Saversky Alexander Vladimirovich
3. An example of the qualification of a crime
Now it makes sense to analyze a specific example in order to see the logic of the Criminal Code of the Russian Federation in action.
Example
Citizen N applied to hospital X for an artificial termination of pregnancy (abortion) at the 11th week of pregnancy. As a result of the surgery, the pregnancy was terminated, but perforation of the uterus occurred, which caused internal bleeding, which was not noticed by the operating doctor D, who did not show the necessary care and caution. The woman went home, and by the evening she developed severe weakness, there were pains in the lower abdomen, profuse discharge from the genitals, nausea and vomiting. An ambulance hospitalized her, but the woman died as a result of blood loss.
1. The object of the crime under consideration is social relations that ensure the safety of human life, in this case, the relationship between the operating doctor D of the hospital X and the citizen N, based on blanket dispositions contained in legislation, regulations, rules and regulations on the protection of public health.
2. The objective side of the crime is expressed in the fact that doctor D, having everything necessary (operating room, instrument, assistants and other the necessary conditions), performed the operation poorly, made a gross mistake and did not track the bleeding that occurred. Doctor D was obliged in his work to be guided by current legislation on the protection of the health of citizens, regulations, rules, knowledge about the achievements of medicine, set out in the special literature on this issue, and their job description, which would eliminate the error.
3. The death of the victim is in an obvious causal relationship with the actions of the doctor, which was confirmed by the act of the pathological and anatomical autopsy of the corpse: exsanguination of organs.
4. The subject of the crime is special; it is a person of the medical profession who performs functions in accordance with this profession, which in our case is the doctor D.
5. To establish the degree of guilt, it is necessary to separate one form of guilt from another: intent from negligence. To do this, it is initially necessary to separate the action of producing an abortion from the action that led to the perforation, since a crime is always a specific, definite dangerous action. The doctor's actions were initially aimed at producing an abortion, and not at perforating the uterus. The act of performing an abortion is not socially dangerous if performed professionally. The act of perforation is dangerous - it is precisely this that is subject to punishment.
When determining intent, despite the fact that we are talking about the awareness of the social danger of actions and the doctor must be aware of this danger during the performance of an abortion, the harm accompanying the act is not punishable. The doctor was unaware that he had perforated the uterus. Thus, he was not aware of the danger (it is almost impossible to prove the opposite in this situation), which means that there was no intent to commit a crime. This is enough to remove the blame for the murder under Art. 105, in particular, and under item d) part 2 of this article: "murder: ... of a woman who is obviously pregnant for the guilty party."
Then it becomes necessary to establish the type of negligence: frivolity or negligence.
Since, with frivolity, the person realizes that as a result of his actions, a danger may arise, but hopes to avoid or prevent it, then we are always talking about some kind of deliberate action, the dangerous consequences of which can be avoided. This cannot be said about the action of the doctor, who was not at all going to perforate the uterus. Moreover, he could not hope in advance for any prevention of danger, since he was not going to do anything dangerous. Thus, there is no frivolous guilt.
Despite the fact that the doctor was not aware of the indirect consequences of abortion in the form of perforation, he nevertheless had to foresee such a possibility, having special knowledge in the field of medicine that he studied and worked in. In addition, perforation of the uterus is not an isolated phenomenon and is described in the medical literature quite widely, in particular on the question of how to prevent it. Moreover, working as a surgical instrument in the human body, he had to assume the possibility of damage to the walls of the uterus, with which the instrument came in contact.
Thus, doctor D, with the necessary care and foresight, had (due to his official duties and knowledge) and could (he was sane, nothing prevented him) to foresee the onset of the consequences of surgical intervention in the form of uterine perforation and avoid them.
Then an inattentive attitude to one's business, an indiscretion in relation to the results of one's actions gives us the subjective side of the crime, indicating negligence.
Since we are also talking about causing death “as a result of improper performance by a person of his professional duties,” the corpus delicti is evident and the doctor must be punished under Part 2 of Article 109 of the Criminal Code of the Russian Federation.
Section 109... Causing death by negligence
2. Causing death by negligence as a result of improper performance by a person of his professional duties -
shall be punishable by restraint of liberty for a term of up to three years, or imprisonment for the same term, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
6. This would be the end if the doctor noticed the bleeding, would take measures to save the woman, but she would die anyway. Let me tell you from experience: the investigator would definitely stop there.
However, in this case, the doctor not only perforated the uterus, but did not notice either this or the resulting bleeding, that is, he did not provide medical assistance. This leads to the need to rethink the qualifications and look at Part 2 of Art. 124 of the Criminal Code of the Russian Federation:
Section 124... Failure to provide assistance to the patient
1. Failure to provide assistance to a patient without valid excuses by a person obliged to provide it in accordance with the law or with a special rule, if this entailed, through negligence, the infliction of moderate harm to the patient's health, - shall be punishable by a fine in the amount of up to forty thousand rubles, or in the amount of wages, or any other income of the convicted person for a period of up to three months, or correctional labor for a term of up to one year, or arrest for a term of two to four months.
2. The same act, if it has entailed the death of a patient by negligence or causing grievous harm to his health, - shall be punishable by imprisonment for a term of up to three years, with or without the deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
From the moment of uterine perforation onset of bleeding, citizen N is considered sick for this, and bleeding is a new disease requiring immediate medical attention. Doctor D was supposed to diagnose this condition, observe the woman for at least a few hours (up to 24), but did not.
The corpus delicti is obvious - inaction, resulting in death (failure to provide assistance to the patient).
The object of the crime is the same - the safety of human life. The objective side is the same, with the exception of the usually imposed requirements not for the production of abortions, but for the diagnosis and treatment of bleeding.
The subjective side is the same.
Thus, we are dealing with a kind of double crime, which, in accordance with Art. 17 of the Criminal Code of the Russian Federation could be regarded as a set of crimes. However, the aggregate of crimes consists either of two or more different crimes committed by two or more independent actions (real aggregate), or of two or more crimes committed by one action (ideal aggregate).
An ideal set, as well as a real set of crimes, united by unity of intention, should be distinguished from complex (or multi-component) crimes, when the legislator brings together various crimes, one of which serves as a stage, method, method of committing the entire crime as a whole. In such cases, a separate qualification of the relevant crimes is not required, since, by constructing a complex composition, the legislator reflected in the amount of the corresponding punishment the increased danger of such crimes.
In our case, the result of both crimes was the same - the death of a woman.
And the above analysis is necessary in order to understand the true causes of death, including the possibility of its prevention.
This text is an introductory fragment.§ 4. Corpus delicti as an instrument of qualification From the definition of qualification and the entire subsequent presentation, it is obvious that qualification is inseparably linked with the concept of corpus delicti and its features. Dual service role of corpus delicti
Chapter 2 Corpus delicti and its functions during qualification
§ 1. Criminal law and corpus delicti as the basis for the qualification of crimes Determination of the qualification of crimes as the establishment and legal consolidation of the identity of legally significant signs of a really committed act with signs of corpus delicti
Chapter 5 Changing the qualification of a crime
Chapter II Corpus delicti as a criminal legal basis for qualification
13. The concept of the subject of the crime and its relationship with the object of the crime. Multi-object crimes Subject of crime - objects of the material world, which are directly affected by the criminal, carrying out an encroachment on the object of the crime, and
52. The concept, types and significance of the qualification of crimes. The process of qualifying crimes The qualification of a crime is the establishment and legal consolidation of the identity between the features of the committed act and the features of the corpus delicti. Qualification
Example No. 1 The tax authority on February 15, 1995 received information from a notary that the inheritance was opened from September 10, 1994 by the heir of the first stage. The value of the inherited property was 25,000,000 rubles. Minimum monthly wage on the day of opening the inheritance
Example No. 2 The tax authority on December 15, 1994 received information from a notary that the inheritance was opened from June 1, 1994 by the heir of the first stage living with the testator. The total value of the inherited property was 40,000,000 rubles. (inherited property
Example No. 1 If, during 1994, an individual from the same donor, who is not in a relationship with the donee, received three gifts under notarized donation agreements (in January - in the amount of 1,000,000 rubles, in April - in the amount RUB 5,000,000 and
Example No. 2 Citizen N. in January 1995 received an apartment worth 10,000,000 rubles as a gift, which belonged to his mother and her spouse, who is not the donee's father, on the basis of common joint ownership.
Example No. 3 An individual in January 1995 donated an apartment worth 35,000,000 rubles. two individuals(to spouses) in common joint ownership with the donor in various kinship relations (daughter and son-in-law). The minimum monthly wage per day
Example No. 1 Payment notice in the amount of 55 thousand rubles. for the payment of tax on property transferred by inheritance or donation, was handed over to the payer on March 4, 1995, the tax must be paid no later than June 3, 1995, i.e., the last day of payment is considered to be June 3. Citizen in
Example No. 2 Payment notice in the amount of 50 thousand rubles. for the payment of tax on property transferred by inheritance or donation, was handed over to the payer on March 4, 1995, the tax must be paid no later than June 3, 1995, i.e., the last day of payment is considered to be June 3. By written
3.47. Resolution of the Plenum of the Supreme Court of the USSR "On the qualification of violations of the rules of driving or operating cars by military personnel and other persons who are criminally liable under the Law on Criminal Responsibility for Military Crimes" dated March 30, 1973.
An example of an accident with a fatal outcome In June 2006, at about 5:30 pm, driver V., driving a GAZ-322131 car belonging to Sh., Was driving in the city [...] along the street. Komarova in the direction from the street. Start to st. Queen, while in violation of the requirements of paragraphs 1.3, 1.5, 9.9, 10.1 of the SDA,
