Minority of the act in criminal law: the concept and signs

In the practice of combating criminalization in modern conditions, acts that are considered formally criminal, but which differ from criminal illegal behavior in their essence, are increasingly taking place. As a consequence, today, with the existence of imperfect legislation, issues concerning the definition of the boundaries of an undue fact become particularly important. In this connection, the notion of insignificance of the act acquires an increasing urgency. Let's consider it in more detail.

Criminally-legal value of insignificance of the act

At the moment, this phenomenon remains one of the most complicated categories for clarity. So far, the legislation does not contain a clear definition. The insignificance of the act in criminal law is explained from the position of paradoxical nature of the phenomenon being investigated. In the norms there is no definition of its legal nature. There is no clarity in the interpretation of the factors by which the insignificance of the act in criminal law is established. In addition, there are no explanations of the Plenum of the Armed Forces. Nevertheless, scientists within their research turn to this category, considering the crime in criminal law, taking into account a number of criteria. To them, first of all, they include a threat to the society. Studies in this case are subject to negative consequences, which are caused by illegal behavioral acts of the subject. This research is mainly aimed at identifying the problems of correlation of existing categories of misconduct. In particular, we are talking about administrative offenses and criminal offenses. Thus, this study is not focused on a thorough analysis of the phenomenon as an independent category.

Specificity of construction

First of all it should be said that most theorists adhere to the term "insignificance of the act". However, such a wording in legal journals is questioned. This is due to the specific nature of the concept of "deed". It can be considered both as an obligatory criterion for the objective part of the composition, and as a characteristic of illegal behavior in general. This fact introduces ambiguity into the terminological apparatus of the industry. In this regard, some criminal articles become illogical. For example, Art. 8 of the Code. It establishes that the basis of criminal liability is the commission of an act in which elements of the offense are contained. As a rule, they do not pay attention to the illogicality of this formulation. However, the act acts as a sign of an objective part of the crime. It follows that one characteristic of one component of an entire phenomenon can not include at the same time all the properties of all its elements. This problem is proposed to be solved using two terms simultaneously in the same construction. Thus, the insignificance of an act and a crime must be considered.

Behavior

In the opinion of several authors, the use of the concept of activity in combination with insignificance seems incorrect. This is due to the fact that the latter term implies the activity of the subject. However, the behavior of a person, viewed in the context of insignificance, can be expressed and passively. In this regard, it is preferable to use the word "behavior" in the construction, since it is the one that must be analyzed in qualifying.

The Psychological Aspect

In general psychology, the concept of "behavior" is treated as an interaction with the environment, inherent in all living beings and mediated by external (motor) and mental (internal) activity. The first includes the moments of immobility. Human behavior has natural prerequisites. Together with this, it has a socially determined basis. In the psychology of society, people's behavior is defined as the transformation of an internal state into an action relative to a significant object. It is expressed by an external observable system of actions, within which the motivation of the subject is realized. Behavior, therefore, covers both the active and the passive form of expression of will. This definition allows us to analyze the acts of man from the inside and from the outside. Behavior covers the subject, object, objective and subjective sides. This is sufficient for understanding the category in question. This is due to the fact that the object is analyzed in isolation when establishing the criteria for non-essentiality.

Normative practice

Despite a fairly successful reflection of the essence of the category in question, the term "behavior" is not recognized as a criminal law definition. The law contains a different word that is part of the design. The insignificance is combined with the term "deed". The latter is considered in practice as a result of both passive and active manifestations.

Legislatively fixed criteria

Signs of insignificance of the deed can be found in art. 14 of the Code. In part one, the definition of the main category of the industry is established. It refers to a socially dangerous guilty act prohibited by the Code under threat of punishment. In this case, the legislation considers the material-formal definition as a priority. In the development of this aspect, in Part Two there are some exceptions to the general rules. It defines acts that are not considered crimes. At the same time, they formally contain the criteria for any composition provided for in the Code. But they do not form a social threat because of the insignificance of the deed. The Criminal Code of the Russian Federation in this case expresses the paradoxical behavior of the guilty person. On the one hand, there are all the criteria for an unlawful act of the subject. From another position, there is no social danger.

Interpretation by AN Solovyov

The author proposes to state the norm in a slightly different interpretation. In particular, he believes that the crime will not be an insignificant act, behavior, although formally incorporating a set of characteristics of a specific composition provided for in the Code, but due to the absence or a small level of threat not reaching the degree inherent in the crime. In this formulation, methodological errors are found. First of all, the causal relationship is broken in the interpretation. By this definition, it seems that a small level or complete absence of a threat causes a minor crime, but not vice versa. In addition, it is unreasonable to say that behavior does not reach an established degree. The fact is that by its nature it is already socially dangerous. The same mistakes are also revealed in the author's definition of the essence of the phenomenon under consideration. According to Solovyov, the insignificance of the offense is a socio-legal characteristic of specific behavior. It reflects the functional aspect in which the level of threat of an act involving the characteristics of the composition provided by the Code does not reach the level that is inherent in illegal encroachments.

Other opinions

According to NM Yakimenko, the most successful is the formulation according to which an act that does not pose a threat in view of its insignificance is not considered a crime, which, in turn, is determined taking into account the nature, method, object of encroachment, the content of the motive, results, level Guiltiness, purpose of the offender. A slightly different interpretation of Bazarova. In her opinion, an act that, although it contains formally the characteristics of the composition established in the Code, will not be considered a crime, but because of a small social threat it is insignificant. Zavidov and Borbat gave a more extensive definition. In their view, a crime that formally contains the criteria for any unlawful act provided for in the Code, but in view of its insignificance is not a great threat, that is, does not cause significant losses and does not form a threat of their emergence for the individual, society or state, is not a crime.

Main characteristics

Summarizing the aforesaid, it can be concluded that the criteria by which the insignificance of an act is determined look like this:

1. Formal wrongfulness. In the behavior of the subject there should be the characteristics of any composition provided for in the Code. In this case, it is not supposed that the criteria are identical, but external similarity.
2. A small social danger. The category considered excludes the threat to the society in full. In fact, the insignificance of behavior allows him not to be considered illegal. Nevertheless, its results are taking place. This, for example, may be a non-material injury to health, property and other reparable losses.
3. Absence of socially useful, excusable and neutral behavioral act. In contrast to the factors specified in Art. 8, the deeds are not characterized by utility. At the same time, one can not speak of the admissibility or admissibility, the exculpatory, neutral nature of the conduct of the accused / suspect. It is not encouraged or encouraged by law, but not so much as to bring the subject to justice.
4. Evaluation of the category. The question of the insignificance of one or another behavioral act is a problem of fact. He is in the competence of the inquirer, the court, the investigator, the prosecutor. In each case, an individually authorized person assesses the damage and other actual circumstances. On the basis of their own sense of justice, an appropriate conclusion is formulated. As a result, the behavior will be criminal or insignificant.
5. Intentional character. Only with its presence can we recognize the insignificance of the act. The intention in this case can be both indirect and direct. However, in any case it will be extremely specific. The non-specific nature of the intent causes the qualification of the behavior according to its results (the damage is assessed). It is also important to establish intentionality.
6. Exclusion of crime. Insubstantial behavior does not involve a greater threat to the manifestation of the will of the subject. Consequently, criminal law is also excluded. Nevertheless, in this case only the actual nature of illegal behavior is eliminated. Formally, it remains illegal. The actual exclusion of the criminal punishability of acts of the subject does not give grounds for equating insignificant behavior with non-criminal acts.

Considering the above, we can formulate a generalized definition of the category. The insignificance of an act, therefore, is a property of a formally unlawful, deliberate, not socially useful, excusable and neutral character of behavior that does not pose a great threat. It is established by specially authorized subjects in accordance with the circumstances of the event. Competent persons, in particular, examine the results of conduct of the guilty (harm to health, property, reputation, etc.).

Conditions for recognizing immateriality

Part 2 of Art. 14 CC develops and fixes the social characteristics of the crime. In particular, it establishes that this category does not include behavioral acts that formally include the criteria for the compositions listed in the Code, but which do not pose a significant threat. To recognize the immateriality, two conditions must be fulfilled simultaneously:

1. Behavior should fall under criminal articles. In this case, you can identify the external criteria of illegality.
2. In the behavior of the subject there should be no social danger. Usually, it is absent due to the fact that the losses from acts of the guilty person are scanty.

Often, some damage, some asociality take place in unimportant misconduct. But they achieve not criminal, but immoral, disciplinary, civil-law, administrative degree of punishability. In this connection, when the case is not accepted for proceeding because of the immateriality, the court or the investigator is considering the issue of applying a different measure of responsibility.

An Important Moment

One can not recognize as insignificant an act in which the presence of the characteristics of a crime is associated with the fact of loss, but it has not come. Insubstantiality must be both subjective and objective. This means that the person wanted to commit an insignificant act, and not the event occurred because of circumstances beyond his control. In the event of a discrepancy between the factually carried out and the intent of the subject, the responsibility arises from attempting an unlawful act, which he intended to fulfill. There is no insignificance in the case of the commission of an act with a non-specific intent. It is, in particular, the behavior, in which the perpetrator anticipated and desired the onset of any possible negative option for the victim. Responsibility will come then for the damage caused actually. But in this case, the termination of the case due to insignificance will not follow.

Normative regulation

There are many provisions in the society that regulate people's behavior, including so-called technical regulations. They are not regulated by law, but they can be included in the rules, if they concern public interests. In these cases, such provisions act as legal prohibitions. Depending on the industry, which governs the unlawful action, it can be civil, criminal and administrative. The latter category is similar to the second. However, administrative violations are characterized by a lower level of danger and, correspondingly, a different nature of responsibility.

Specificity of establishment

The lack of significance of an act is determined not only in accordance with the criteria specified directly in Art. 14, part 2 of the Code. When it is established, the severity of the subjective and objective characteristics of behavior as a whole is taken into account. Together with this, one should also remember the close connection of the signs with the direct object of the crime. The more important it is, the less pronounced the characteristics will be. It should also be borne in mind that in behavioral acts, whose composition is formed by the type of material, to the forefront in determining the significance of insignificance come indicators of the degree of threat to the society. When a violation with a formal or truncated structure, priority is given to its intensity. This is due to the fact that in the material composition the harm usually has a fairly definite expression, that is, it will be established. In formal compositions, he often has an uncertain character. This, in turn, creates obstacles in establishing it.

Circle of encroachments

The legislation does not contain a list of acts that may be considered insignificant under certain conditions. In general terms, the effect of part two of Art. 14 of the Code applies to all categories of misconduct. But in order to recognize an act, for example formally falling under the characteristics of a serious crime, insignificant, except for not inflicting a loss on the object of encroachment, it is necessary to have additional factors. To such circumstances, in particular, it is possible to attribute the insignificance of the development of the objective part (as a rule, this is only preparation for the commission of an illegal action), the degree of participation or guilt of the subject in violation, and so on.

Conclusion

The small meaning of the act, therefore, means that the manifestations directed at the object are such that they touch it to a small degree and can not entail serious losses. For example, this is the preparation for a manifestly insignificant misconduct, the commission of any acts of a secondary nature. In general, the intent of the perpetrator must be directed directly to the implementation of a minor behavioral act. Various circumstances are being investigated to establish this fact. The main factor in this case is the degree of danger of behavior for another person, society, state. When establishing the immateriality, part 2 of Art. 14 of the Code. The proceedings in the case are terminated due to the absence of a criminal offense in the act of the subject. In this case, the victim himself can declare the insignificance of the act of the accused. However, this must come from him voluntarily, without any pressure. And in this case, in spite of the victim's statement, the final decision on the insignificance or criminality of the act will be taken by the authorized body. The establishment of immateriality, however, does not mean complete exemption from legal liability. The conduct of the perpetrator in this case is not considered as a criminal offense, but may fall under the formulations of violations provided for in other Codes. In particular, from the criminal category it goes into the administrative one. Minority is applied exclusively to the acts provided for in the Criminal Code. In other cases, other sanction standards of other industries are listed. In most cases, the guilty person will not be able to escape responsibility. When recognizing the immateriality of his behavior, the punishment will not be as severe as under the Criminal Code.