Grankovskaya Victoria Sergeevna, 2nd year student, major of study 40.03.01 "Jurisprudence" of the branch of FGBOU HE "Kuban State University" in Tikhoretsk (Tikhoretsk) [email protected]
International peace as an object of criminal law protection
Annotation. The author considers the international world as an object of criminal law protection, taking into account the evolutionary changes in international relations that have had a tangible impact on the international world. Emphasizes the relevance and due need for the appearance in the criminal legislation of Russia of a chapter on crimes against the peace and security of mankind. Key words: crime, international peace, security of mankind, international relations.
Public relations, which are characterized by the actual absence of armed confrontation between different states or other entities international law, as well as normal (non-hostile) relations between them, based on the generally recognized principles of international law, belong to the criminal category “international peace”. The Nuremberg model of crimes against peace refers to this category of international crimes: 1) planning, preparing, initiating or waging an aggressive war or war in violation international treaties, agreements or representations; 2) participation in a common plan or conspiracy aimed at the implementation of any of the above actions. Today it is necessary to take into account the evolutionary changes in international relations that have taken place, their manifestations have a tangible impact on the international world. Thus, acts of international terrorism at the beginning of the 21st century, acquiring a new criminological, political, legal and socio-cultural quality, lead to a significant violation of the state of peace between states. Illicit trafficking in weapons of mass destruction, although not criminalized at the international level, can also be considered as an international crime, endangering not only the stability of international relations, but also international peace as a common good. Of course, as international practice shows, these criminal and political phenomena do not always lead to a violation of international peace and the emergence of an armed conflict. But there is a high degree of likelihood of an armed confrontation, complications of international and, above all, interstate relations. Crimes against the international peace of the state bear political and material responsibility, and specific individuals
individual criminal liability. For the commission of these crimes, the main war criminals of Nazi Germany and militaristic Japan were brought to justice. To the subject of criminal liability for crimes against international peace, war crimes and crimes against humanity, art. 6 of the Charter of the International Military Tribunal referred to the leaders, organizers, instigators and accomplices who participated in the preparation or implementation of a general plan or conspiracy aimed at committing these crimes. The official position of the defendants, their position as heads of state or responsible officials of various government departments, should not be considered as grounds for exemption from liability or mitigation of punishment. Equally, the fact that the defendant acted on the orders of the government or superior can be considered as an argument for exemption from liability for mitigation of punishment. International law proceeds from the non-application of the statute of limitations to crimes against international peace. indicates; that representatives of state authorities and private individuals guilty of committing these crimes and complicity in them, are liable, regardless of the time of the commission of the crime. The state of international relations guarantees the safe conditions for the existence of mankind. The corpus delicti fixes certain properties inherent in a particular criminal offense, making it possible to single out its general features, and is a criminal law guarantee of the constitutional principle of personal freedom and inviolability of citizens. Crimes against humanity are crimes that encroach on the natural conditions for the existence of historically established ethnic groups or other specific nationally formed community of people, regardless of the presence or absence of their own. state organization. The relations that underlie international peace as an object of criminal law protection are related to the security of mankind, and this is clearly manifested in the modern realities of international relations, when local armed conflicts can turn into international wars using weapons of mass destruction. Moreover, interstate local conflicts, as a rule, reflect not only a violation of the state of peace between warring states, but also special conditions that accompany armed confrontation and are an objective threat to the normal, safe life of the population in the conflict zone. An example is the NATO bombing of Yugoslavia, when armed actions against Yugoslavia were accompanied by the destruction of non-military infrastructure and civilian facilities, which led to the complete or partial destruction of the population in the conflict zone and causing grievous harm their health, as well as the creation of conditions that predetermine the vital extinction of the population. International jurisprudence has not confirmed the facts of genocide against Yugoslavia, however, the International Court of Justice, when considering the case on accusation of Western powers of genocide against Yugoslavia, clearly proved that modern international armed conflicts can express not only a violation of the state of peace between states, but often become a threat of violation safe living conditions for the population. International peace and the security of mankind are fundamental building blocks international legal order, and their ontological essence causes the emergence of only certain crimes that can encroach on these objects. The appearance in the criminal legislation of Russia of a chapter on crimes against the peace and security of mankind suggests that the interests of maintaining international peace as a generic object of national criminal law protection should be understood as: - the interests of ensuring the peaceful coexistence of states and the peaceful resolution of interstate disputes; - the interests of ensuring the physical existence of an indefinite circle persons (humanity as a whole or demographic groups) from any threats, the source of which is the human factor; - the interests of observing the rules for conducting armed conflicts of an international and non-international character. Classifications of crimes against international peace and human security can be based on the main direct object of encroachment, which allows talk about the existence of the following specific groups of crimes against international peace in the criminal law of Russia:
planning, preparation, unleashing or waging an aggressive war (Article 353 of the Criminal Code of the Russian Federation);
public calls to unleash an aggressive war (Article 354 of the Criminal Code of the Russian Federation); rehabilitation of Nazism (354.1 of the Criminal Code of the Russian Federation); development, production, accumulation, acquisition or sale of weapons of mass destruction (Article 355 of the Criminal Code of the Russian Federation); attack on institutions or persons enjoying international protection (Article 360 of the Criminal Code of the Russian Federation).
Links to sources 1. Lobach D.V. International legal order as an object of criminal law protection in international law // International Criminal Law and International Justice, 2014, No. 1; Darda A.V. General principles and rules of judicial interpretation of generally recognized principles and norms of international law // Bulletin of the Peoples' Friendship University of Russia. Series: Legal Sciences. 2004. No. 1. S. 117123.2. Sirik M.S. Crimes of a terrorist nature // In the collection: Integration of science and practice in the context of implementation legal policy states: historical and modern problems of law and law enforcement Proceedings of the 2nd International Scientific and Practical Conference. . 2015. S. 151155; Sirik S.N., Sirik M.S. State policy of countering extremist activity in Russia // Retrospectives and perspectives of law. 2013. No. 5. S. 5155; Sirik M.S. Qualification of extremist activity according to the Criminal Code of the Russian Federation // In the collection: Combating crime: criminal law, criminological and penal aspects Materials of the III Russian Congress of Criminal Law (May 2930, 2008). Moscow State University M.V. Lomonosov; edited by V.S. Komissarov. Moscow, 2008. S. 663666.3. Kibalnik A. G. Influence of international criminal law on Russian criminal law: Abstract of the thesis. dis. ... doc. legal Nauk.M., 2003; Sirik M.S. Sirik S.N. Composition of a crime as a basis for criminal liability // New word in science: development prospects: materials of the VII Intern. scientific practice conf. (Cheboksary, January 15, 2016). In 2 vols. Vol. 2 / editorial board: O. N. Shirokov [and others]. Cheboksary: CNS "Interactive Plus", 2016. No. 1 (7). C. 378380.4. Judgment of the International Court of Justice of June 2, 1999 “The case concerning the legality of the use of force (Yugoslavia v. Belgium, Yugoslavia v. France, etc.)” // Summary of decisions, advisory opinions and decisions of the International Court of Justice. 1997 2002. New York, 2006. S. 80, 95. 5. The Criminal Code of the Russian Federation dated 06/13/1996 No. 63FZ (as amended on 07/13/2015, // Collection of Legislation of the Russian Federation, 06/17/1996, No. 25, art. 2954; Popova L.E. Russian policy at the present stage of building a social state // In the collection: Actual problems legal science and practice Materials of the II Interuniversity Scientific and Practical Conference; under the general editorship of E. V. Korolyuk. Ministry of Science and Education of the Russian Federation, Branch of FGBOU VPO "Kuban State University" in the city of Tikhoretsk. 2014. S. 163165.
The positions presented in the legal literature regarding the fact that personal data is an object criminal law protection, are highly ambiguous.
The object of criminal law protection is quite often defined through the concept of protected public relations who may be harmed as a result of the crime.
This is a fairly well-established criminal legal doctrine position . At the same time, there are no serious differences between the object of criminal law protection and the object of the crime.
So, E.K. Kairzhanov believed that the object of criminal law protection and the object of the crime coincide in terms of the scope of concepts.
N.I. Korzhansky believes that the difference between these concepts lies only in the presence or absence of a criminal encroachment. The object of criminal law protection is that social relation that is placed under the protection of the criminal law, but which has not been subjected to criminal change. And in contrast to this, the object of the crime is the social relation that has already undergone a criminal change.
Meanwhile, the scientific community has already formed directly opposite opinions, according to which these concepts of the object of criminal law protection and the object of the crime are unequal.
So, L.D. Gauhman writes that “the concept of “object of criminal law protection” and “object of a crime” are not the same concepts in their meaning, even though both of them are based on the category of “public relations”. The first gives only general idea on the range of social relations protected by criminal law, has
general social significance. The second has criminal value, So
characterizes the element of the crime.
The literature also emphasizes that "the object of criminal law protection arises from the moment the criminal law protecting social relations comes into force, the object of the crime - from the moment the crime is committed" .
E.A. Koryakina believes that "object of criminal law protection" and "object of crime" are non-identical concepts. The object of criminal law protection should be understood not as social relations, but as benefits and interests protected by criminal law. An object individual crime- the benefits and interests in respect of which a criminal encroachment has been carried out or a threat of such an encroachment has been created.
R.V. Zakomoldin points out that “the object of criminal law protection is represented by the most significant social relations, is primary in relation to the object of the crime, since the act will not be criminal if it encroaches on an object that is not protected by criminal law. Consequently, the object of criminal law protection exists regardless of whether a criminal offense has been committed or not, in contrast to the object of a crime, which arises only upon the commission of a socially dangerous act.
It should be recognized that the object of criminal law protection is indeed an independent concept, different in scope from the concept of the object of a crime, since the latter refers to a guilty socially dangerous act, prohibited by criminal law under the threat of punishment.
The object of criminal law protection in itself emphasizes the increased protection of certain public
relations, benefits and legitimate interests, ensuring that the state will provide an appropriate law enforcement mechanism aimed at applying measures of responsibility for criminal encroachments on this object. From this we can conclude that the concept of an object of criminal law protection is functionally and genetically associated with the concept of an object of special protection, fixing the legislative possibility of the emergence of protective legal relations in the event of a criminal offense.
Therefore, speaking about the criminal law protection of a specific object, it is necessary to understand that we are not talking about the object of a specifically committed socially dangerous act, but a system of legal relations that are subject to criminal law protection due to the special danger of criminal encroachments against them.
Personal data, being a special type of information, is in many cases necessary condition implementation by the subject of certain rights and freedoms, since the subject, entering into a legal relationship, must identify himself, “single out”, “isolate” from all other participants. Since relations connected with the circulation of personal data established by law can be exposed to serious dangers, then public relations for the circulation of personal data can be considered as an object of criminal law protection.
The justification of the criminal law protection of personal data cannot do without answering the question of what, in this case, is the object of the corresponding criminal encroachments. In this regard, the position of G.P. Novoselov, who believes that “as a constructive feature of the concept of the object of a crime, one usually sees both what is violated by the crime, and what is affected in the process of its commission, and what changes as a result of such an impact, and what
requires its criminal law protection, and, finally, that which suffers harm. However, he points out that "each of these characteristics is important in its own way and reflects only a separate side of this phenomenon" .
In addition, when substantiating what is included in the concept of the object of a crime, the author points out that “the object of any crime is people who in some cases act as separate individuals, in others - as a kind of set of persons who have or do not have the status of a legal entity, thirdly - as a society (society) ".
It seems that if a person is the object of a crime, then in this regard, the inviolability of his personal data becomes of serious importance, and the presence criminal legal regulations about liability gives grounds to say that the legal protection of personal data has a separate, "enhanced" character. At the same time, personal data themselves, in our opinion, must be considered in some cases as the subject of criminal encroachments, since with their help the criminal encroachments themselves are carried out.
Speaking of state of the art criminal law protection of personal data, it should be noted that today, from the moment of enactment federal law“On personal data”, law enforcement practice has taken the path of qualifying criminal encroachments on personal data under several articles of the Special Part of the Criminal Code of the Russian Federation.
At the same time, not a single norm of the Special Part, which is to be applied in such cases when committing crimes, contains a provision in which context personal data should be protected. This follows from the fact that the norms of the Special Part on liability for criminal attacks on personal data
are blanket in nature, and the criminal law itself does not disclose which categories of personal data are subject to protection. In addition, personal data, falling under various legal security regimes, are so cross-sectoral in nature that the issue of criminal law protection of personal data in each case is made dependent on the type of personal data, their content, as well as prohibitions and restrictions, which in in this particular case were established against them.
Meanwhile, understanding the mechanism of criminal law protection, the essence of the grounds for bringing perpetrators to criminal liability is of great practical importance, since practice shows that law enforcement officers are not always guided by reasonable logic in matters of qualification and sentencing for relevant crimes that infringe on personal data.
An analysis of criminal cases on crimes infringing on personal data showed that the acts of the perpetrators are qualified under several articles of the Special Part of the Criminal Code of the Russian Federation. The vast majority of the studied criminal cases were initiated and investigated under Art. 137 of the Criminal Code of the Russian Federation - violation of immunity privacy. In addition, the acts were qualified under Art. 183 ( illegal receipt and disclosure of information constituting a commercial, tax or banking secret).
So, by the verdict of the justice of the peace of the Leninsky district of the city of Tyumen, G. was found guilty of committing a crime under Part 1 of Art. 137 of the Criminal Code of the Russian Federation. The court found that in the summer of 2013, G., after a quarrel with his friend, created in social network"Vkontakte" her fake page, on which he posted photos of the girl in the nude and semi-nude. Some time later, on the same social network, he created another page on behalf of the girl, where to her candid photos
added phone numbers and status with offers of intimate services.
In another criminal case, the Noyabrsky City Court of the Yamalo-Nenets autonomous region convicted P., a former specialist in training of the retail market department of the fixed business of the branch of Mobile TeleSystems OJSC, of committing a crime under Part 3 of Art. 183 of the Criminal Code of the Russian Federation. It was established that in December 2013, P., with the help of his colleague, obtained the personal data of subscribers and sent them from his email address to the email address of an acquaintance. For this service, an employee of the branch of MTS OJSC received 5,000 rubles.
In some cases, law enforcement practice qualifies actions for the illegal collection or dissemination of personal data constituting personal and (or) family secrets, in conjunction with Art. 272 of the Criminal Code of the Russian Federation. Thus, a criminal case was initiated against a resident of Kaluga V. under Part 1 of Art. 137 and part 1 of Art. 272 of the Criminal Code of the Russian Federation, since in June 2010 she found out the login and password from the personal page of her friend on the Odnoklassniki website. Using the login and password, V. went to his page, where she got acquainted with incoming and outgoing messages and, using the service of the Odnoklassniki website, forwarded their copies without the consent of the man to his friend. In addition, subsequently V., having accessed the victim's personal page, changed the information about her private life in the "status" column on his personal page, and also deleted his photo, information about friends and acquaintances 183 .
At the same time, we have not come across a single criminal case with a guilty verdict in which the actions of the perpetrator would be qualified according to the totality of Art. 183 and Art. 272 of the Criminal Code of the Russian Federation.
In most of these cases, law enforcement authorities do not fully correlate the object of the attack with the real consequences of the attack or the intention of the perpetrator to commit a crime. Therefore, in some cases, the qualification of the deed occurs according to one of the indicated norms of the Special Part of the Criminal Code of the Russian Federation, and in others - according to two norms. It is obvious that this problem is generated by the lack of unity in understanding the essence of the object of protection, as well as the grounds for such protection. Thus, there is a need to analyze the norms of the identified articles of the Special Part for the object of criminal law protection, which they fix.
Article 137 of the Criminal Code of the Russian Federation is devoted to the protection of privacy, which is indicated by most researchers as the main direct object of the crime provided for by this rule. At the same time, the right to privacy is inalienable and inalienable, guaranteed by the Constitution of the Russian Federation. In this regard, the statement of I.L. Petrukhin, according to which the complex legal situation lies in the fact that "the need for personal life lies outside the law, but the latter expresses, consolidates this need and ensures its satisfaction" .
In the commentary to the Criminal Code of the Russian Federation, edited by A.I. Raroga states that “the object of the crime under Part 1 of Art. 137 of the Criminal Code of the Russian Federation is constitutional law to privacy." In the commentary to the Criminal Code of the Russian Federation, edited by V.T. Tomin and V.V. Sverchkov points out that “the main object of criminal encroachment in this case public relations are
emerging regarding the implementation of the constitutional principle of inviolability of private life, personal and family secrets, and optional objects can be the honor, dignity and good name of a person. In the commentary to the Criminal Code of the Russian Federation, ed. A.V. Brilliantova, the authors draw attention to the fact that "public relations that are developing regarding the implementation of this constitutional right constitute the main object of the corpus delicti in question" .
The literature also expresses the opinion that the object of this crime is a social relationship, in which no person, without the will of another person, has the right to intrude into his private life in the form of collecting or disseminating information about him. In turn, N.I. Pikurov points out that "the definition of the object of criminal law protection, or rather, the boundaries of private life, in this case is the most difficult" .
Some authors point out that “there is no strict definition of private life not only in the Constitution of the Russian Federation, but also in international instruments related to this area. But even in the absence of legal definitions, it is difficult to deny the existence of a close connection between the concepts of "private life" and "personal data".
At the same time, if we turn to the content of Article 137 of the Criminal Code of the Russian Federation, we can find that the right to privacy, which in this case is subject to criminal law protection, is protected in the context of personal and family secrets. This formulation is basically
follows from the provisions of Art. 23 of the Constitution of the Russian Federation, which just means that under the implementation of the right to privacy, the right to determine the amount of information that will constitute a personal and family secret of a person.
There is a lot of controversy in the literature about the concept of "mystery". Some researchers point out that there is no general legal definition of the concept of secrecy in Russian legislation. This is due to the intersectoral nature of the institution of secrecy in the Russian legal system. So, in one of their works, A. Kibalnik and I. Solomonenko, formulating the definition of secrecy in criminal law, indicate that in relation to criminal law protection, it should be understood as information (information), access to which is limited in accordance with the provisions of federal legislation , and for unauthorized violation of the confidentiality of which is established criminal liability 191 .
V. A. Mazurov, highlighting the common features of various types of secrets in Russian legislation, defines a secret as “confidential information protected by the state in the field of socio-political, economic, military and private life of citizens, illegal receipt, disclosure, the use of which creates a threat of harm to the rights and the legitimate interests of citizens, society, the state and entails the responsibility of the perpetrators in accordance with the current legislation of the Russian Federation.
S. G. Selezneva, revealing the concept of “secret”, indicates that “secret implies not just information, but its certain state, legal regime. At the same time, information is hidden insofar as it can adversely affect the motivation of actions,
behavior and opinion of others. By protecting this information, we protect, first of all, ourselves” 193 .
I.V. Bondar understands a secret as “information presented in an intangible form or on physical media and having potential spiritual, moral, ethical, commercial or other socially significant value, information known or entrusted to a limited circle of persons, access to which is limited by the current federal legislation, in connection with which its owner or other owner takes the necessary measures to protect its confidentiality, the disclosure of which entails the application of measures of legal liability.
A.V. Serebrennikova rightly, in our opinion, points out that “the legislator quite reasonably uses the concept of “secret” to distinguish between the degree of confidentiality of information, without using this term it would be difficult to prove what public danger actions if the perpetrator divulges information that is not a secret.
In essence, a secret is defined as information, a set of information, in respect of which a legal regime has been established, which, due to its vulnerability, implies a set of restrictions and prohibitions in order to ensure its protection. It should be agreed that a secret is always a restriction on the free flow of information, and therefore, depending on the type of protected information, various types of secrets can be introduced into legal circulation, including personal and family secrets, the protection of which is dedicated to Art. 137 of the Criminal Code of the Russian Federation. In addition, keeping certain information confidential
emphasizes its increased value for the subject and indicates that it is nothing but an intangible good.
The concepts of "personal" and "family" secrets in legal science are also defined differently.
Most authors put an identity sign between the concepts of "privacy" and "personal and family secrets", determining that privacy depends on the observance of the secrecy regime of information that is valuable to the subject, and the disclosure of which for him may have inevitable negative consequences. So, I.A. Yurchenko defines that "information relating to a secret is such, first of all, since the subject himself attributed it to this type" . In turn, the subject himself determines that such information is inviolable.
V.E. Trofimova points out that “personal secrets should be understood as information (information) protected by criminal law, reflecting particularly important aspects of a person’s private life, which makes them confidential. Family secret should be understood as information protected by criminal law, reflecting particularly important aspects of the private life of several persons (two or more) who are each other.
with a friend in a family relationship that gives them a confidential
character" .
Ponomareva Yu.V. believes that “the concepts of “personal secret” and “family secret” are very abstract in Russian legislation, which allows many researchers to include completely unexpected substantive points in them. For example, these concepts are related to other concepts, such as "personal data", "secret adoption", "secret correspondence", "secret telephone conversations". By
In essence, a personal secret is defined as information about the personal, everyday, intimate spheres of the subject's life, which includes a fairly wide and poorly defined list of information. The absence of a clear legislative regulation of these concepts indicates a serious legal gap.
Thus, personal and family secrets in their content reveal the right to privacy. But at the same time, in our opinion, the secret is not a set of information, but legal regime, which establishes a set of restrictions and prohibitions regarding a set of information. Hence, the functional connection between personal and family secrets as a legal regime for restricting the free distribution of personal data and the personal data themselves, in respect of which this regime can be established by a particular subject, is obvious.
About the regime nature of personal and family secrets, as well as any kind of secret, including in relation to personal information, says, in particular, A.A. Efremov, pointing out that "secret is not only confidential information, but also the legal regime of information". Consequently, the criminal law protection of personal data in the context of personal and family secrets will depend on whether the said data is included in the regime of personal and family secrets or not.
In addition, the “regime nature of legal protection” in relation to personal and family secrets is confirmed by the position of the Constitutional Court of the Russian Federation, expressed in the Ruling dated June 28, 2012 No. 137 of the Criminal Code of the Russian Federation”: “The right to immunity
private life, personal and family secret means the opportunity provided to a person and guaranteed by the state to control information about himself, to prevent the disclosure of information of a personal, intimate nature ... Accordingly, only the person himself has the right to determine what kind of information related to his private life should remain secret, and therefore the collection, storage, use and distribution of such information, not entrusted to anyone, is not allowed without the consent of this person as required by the Constitution of the Russian Federation.
Article 183 of the Criminal Code of the Russian Federation is devoted to the criminal law protection of other types of secrets. As indicated in the literature, article 183 of the Criminal Code of the Russian Federation is devoted to the criminal law protection of economically significant information protected by law, constituting the corresponding type of secret - commercial, tax or banking. So, the crime under Art. 183 of the Criminal Code of the Russian Federation, encroaches on the safety of information that acts as the subject of a crime and for which there is a regime of their confidentiality. G.A. Rusanov believes that “the direct object of the crime under Art. 183 of the Criminal Code of the Russian Federation are public relations that ensure the right to keep commercial, tax and banking secrets.
Recognizing that the established system of public relations is still decisive in substantiating the essence of the object of the crime, we will proceed from the fact that the object of this crime is indeed public relations, but related to ensuring the confidentiality of information constituting commercial, tax or banking secrets in order to implement measures security
established economic system. Confidentiality of this type of information is necessary, since it ensures the stability of business turnover in the implementation of entrepreneurial and other economic activities, as well as the security of subjects of trade turnover.
The public danger of this type of encroachment on these types of confidential, legally protected information is quite obvious. B.V. Volzhenkin wrote that "the development of free enterprise and the competition associated with it urgently requires legal protection of information of commercial value, the disclosure of which may harm economic entities" . Therefore, information that falls under the concept of commercial, tax and banking secrets is the most important component in the mechanism for protecting the existing system of economic legal relations.
With regard to Art. 183 of the Criminal Code of the Russian Federation, personal data can be protected only if this information is a commercial, tax or banking secret, that is, they are subject to a regime of restrictions and prohibitions related to the fact that the disclosure of such information may be economically unsafe for the business owner. subject.
The concept of a commercial secret is legally enshrined in the Federal Law "On Commercial Secrets", while it must be emphasized that this normative act distinguishes between the concepts of "trade secret" and "information constituting a trade secret. So, in Art. 3 a trade secret is understood as a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market of goods, works, services or obtain other commercial benefits. Information
constituting a commercial secret, the law defines as follows: “Information of any nature (production, technical, economic, organizational and others), including the results intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have actual or potential commercial value due to their unknown to third parties, to which third parties do not have free access on a legal basis and in respect of which the owner of such information has introduced a commercial regime. secrets.
As you can see, the legislator has described in sufficient detail the signs by which this or that information should be classified as a trade secret. It seems that the legislator's logic in describing these concepts is quite obvious - a secret is indeed a legal regime that imposes certain restrictions and prohibitions on free access to such information; when defining the concept of information constituting a trade secret, the legislator proceeds from the signs by which this type of information can be exposed. Thus, it can be determined that a secret in relation to a trade secret establishes a legal regime, and the concept of information carries the content aspect of information that should fall under the trade secret regime.
In commercial circulation, personal data is often subject to trade secrets. In some cases, the coincidence of the legal regimes that apply to this or that information in practice can cause certain problems in law enforcement. Thus, in order to implement the Federal Law “On Combating Corruption”, the Government of the Russian Federation adopted a corresponding package of by-laws, which provided that a number of officials of companies with state participation(created to fulfill the tasks assigned to the Government of the Russian Federation) are obliged (by analogy with state
Federal Law "On Trade Secrets" dated July 29, 2004 No. 98-FZ // SZ RF. 2004. No. 32. Art. 3283.
employees and substitutes public office) to be published annually in open access information about property, as well as income and liabilities of a property nature. However, by Decree of the Government of the Russian Federation of March 25, 2015 N ° 276 2 θ 8, significant changes, and the heads of twenty-three state-controlled joint-stock companies and members of their families are excluded from the list of persons obliged to publish information of a property nature in the public domain. Thus, persons who, in their own way legal status, in essence, were equated with civil servants, ceased to bear the burden of accountability to the public. Funds mass media They attributed this change to the fact that government acts violated the trade secret regime in relation to such information: “The mere presence of the state as a shareholder does not change the status of the company as a commercial structure. At the same time, the top management of state-owned companies is obliged to provide data to the Government of the Russian Federation, but they are, among other things, a commercial secret.
By this issue there are other opinions: “Comparison with a trade secret is incorrect, since it is impossible to draw conclusions about business processes based on such information. Rather, it can be considered personal data (with the appropriate legal regime - approx.), But then it is not clear what is the difference between companies with state participation and, for example, state corporations like Rostec and VEB.
It seems that the classification of a particular set of personal data as a commercial secret should be justified with
from the standpoint of ensuring the security of the most important protected systems in the state and from the standpoint of maintaining a balance of private and public interests. Of course, information on income and expenses, on property and liabilities of a property nature in relation to persons who are employees or top managers of companies with state participation, constitute personal data and, according to general rule, attributing them to one or another type of secret (including commercial) should be determined by the subjects themselves. But the status of a company that ensures the fulfillment of public interests and is financed from the state budget, determines special measures social responsibility in relation to top managers and employees of this company, since possible abuse and theft on their part can threaten the entire system of public relations and the interests of the state, and not just a single company. Based on this, the prohibitions and restrictions that were established against top managers of companies with state participation, in our opinion, had little to do with the content of commercial secrets and ensured the public interests of the state to a greater extent than at present.
Analysis of criminal cases with the qualification of a criminal act under Art. 183 of the Criminal Code of the Russian Federation, where the subject was personal data, showed that most often the trade secret regime in such cases is violated in relation to the following type of personal data:
1. Personal data of clients of commercial firms that permanently or temporarily maintain contact with a commercial organization and use the services (works) of this organization;
2. Personal data of individuals - partners of a commercial organization who, on an equal or other basis, cooperate with the organization.
3. Personal data of third parties that can directly or indirectly affect the competitiveness of the organization in the trade turnover.
It is obvious that all these types of personal data have the most important feature for the organization that allows them to establish a commercial secret regime in relation to them - they help the organization to periodically or constantly make a profit, avoid unjustified expenses or receive other benefits of a property nature, and that is why they are especially valuable. . On the other hand, personal data that falls under the trade secret regime may contain information that, among other things, also constitutes a personal or family secret.
The literature suggests that “customer bases of commercial organizations, which mainly consist of personal data of customers, are protected by criminal law and fall under the regime of trade secrets only if such a regime is introduced in respect of them and every effort is made to so that this information is not available to third parties. If the attacker committed an encroachment on this information, then he is subject to criminal liability under Art. 183 of the Criminal Code of the Russian Federation". It should be noted that the judicial and investigative practice has adopted this position, and the illegal alienation of client bases is indeed qualified under Art. 183 of the Criminal Code.
So, by the verdict of October district court P. and K. of Novosibirsk were found guilty of committing a crime under Part 3 of Art. 183 of the Criminal Code of the Russian Federation. The court found that P., the acting head of the wholesale and retail sales, and K., regional sales manager working in the organization,
carrying out business activities in wholesale trade, there was an intent to illegally use the client base of the organization in which they carried out their activities. In order to commit a crime, they created a commercial organization in which they took leadership positions. To conduct business operations, they installed on a personal computer the client base of their original place of work, which was entrusted to them in connection with their official activities. Carrying out activities in the trade of ceramic products and utensils, P. and K., thus, entered into sales contracts with persons who were clients of the organization - their former place of work. Thus, P. and K. illegally used information constituting a commercial secret.
In addition, V.G. Stepanov-Egiyants proposes to attribute to personal data subject to the trade secret regime, including logins and passwords (accounting and registration data) of the organization's subscribers necessary for accessing the Internet, but only if they are classified by the injured organization as a commercial secret 211 .
It appears that any customer base of a commercial organization or individual entrepreneur, containing personal data of persons who used the services or works of these entities economic activity, falls under the trade secret regime, regardless of compliance or non-compliance by this subject with the rules and trade secret regime. This is due, first of all, to the fact that such a regime in the form of restrictions and prohibitions is established by law in order to ensure the security of the economic activities of entities that make profit. Sale, transfer or other misuse of the customer base
of an economic entity in any case entails damage to its interests, since the “leaving” of customers means an outflow of capital, “leaving” income, removing the opportunity to receive any other benefit of a property nature. Thus, we believe that the regime of trade secrets in relation to the client bases of commercial organizations is extended due to established legislative features.
The concept of bank secrecy, like any other secret protected by law, is established in the current legislation. In particular, Article 26 of the Federal Law "On Banks and Banking Activities" establishes that a credit institution, the Bank of Russia, an organization that performs the functions of compulsory deposit insurance guarantee the secrecy of operations, accounts and deposits of their customers and correspondents. All employees of a credit institution are required to keep secret about transactions, accounts and deposits of their clients and correspondents, as well as about other information established by a credit institution, unless this is contrary to federal law. The regime nature of banking secrecy is expressed in the system of restrictions and prohibitions provided for by the same article of the federal law. Thus, it has been established that certificates on the status of accounts of individuals can be issued, for example, to authorities preliminary investigation on cases being in their proceedings, only with the consent of the head of the investigative body; at the request of the court as part of a civil or criminal case; in the event of checking, in accordance with the Federal Law “On Combating Corruption, information about income, property and property obligations of these categories of citizens, etc.
In addition, the security of banking secrecy can be judged based on the fact that it belongs to one of the types of professional secrecy,
classified in accordance with the Decree of the President of the Russian Federation of March 6, 1997 No. 188 to the list of confidential information.
There are also numerous disputes in the literature about what type of confidential information should be classified as information constituting bank secrecy. Thus, some researchers believe that "bank secrecy should be classified as a kind of commercial secret, since this directly follows from the Presidential Decree" . Others classify banking secrecy as confidential information of legal entities, along with official and commercial secrets. Still others suggest considering banking secrecy as an independent type of confidential information.
In our opinion, banking secrecy, arising from the content of legally established restrictions and prohibitions in relation to a particular type of information, has a specific character that allows us to speak about the independent nature of the regime of this information. This specificity is due to the fact that the bank secrecy regime includes information about bank accounts, transactions, deposits that cannot be freely distributed in civil circulation due to the social significance of this information for citizens and organizations. That is why the system of restrictions and prohibitions in relation to the specified information allows us to speak of an independent legal regime of banking secrecy.
From the standpoint of criminal law protection, violation of the banking secrecy regime entails the establishment of various measures of legal liability, including
including criminal. In our opinion, information about bank accounts and deposits, as well as any other information of a banking nature in relation to a citizen, can be attributed to a type of personal data. Accordingly, they will be personal data subject to the legal regime of banking secrecy and subject to criminal law protection under Art. 183 of the Criminal Code of the Russian Federation.
The regime nature of banking secrecy, at the same time, in some cases may create legal obstacles to the implementation of other important elements of the current law and order, since the use of legal restrictions and prohibitions on the free distribution of this type of information may be associated with the impossibility of suppressing various kinds of fraudulent activities.
In this regard, an opinion is expressed that it is necessary to soften the legal regime of restrictions and prohibitions established by banking secrecy by introducing a legal norm on the possibility of exchanging banking information when investigating and suppressing cases of cyber fraud with the misuse of personal data included in the structure of banking information. In addition, the media indicate that, in practice, the exchange of banking information actually already exists, but is carried out illegally.
We believe that when discussing the advisability of introducing such a rule into the legislation of the Russian Federation, one should proceed from the principle of sufficient necessity to limit the operation of several legal institutions at once: on the one hand, the legal regime of banking secrecy, and on the other hand, the legal regime of personal data confidentiality. Both of these regimes in such legal relations are objects of increased protection, and their violation may lead to the violation of a larger number of legal relations. In addition, the fact
fraudulent actions can only be established by law enforcement agencies, since it is they who initiate criminal cases according to the appropriate qualifications. Following this logic, it seems that the only legitimate mechanism to ensure the security of banking information from criminal encroachments within the framework of the current legal regimes of its confidentiality will be a request from a law enforcement agency based on judgment, in connection with the criminal case under investigation, especially since this provision is already contained both in the norm of the Federal Law "On Banks and Banking Activity" (Article 26), and in the norms of the Federal Law "On Personal Data" (Part 8 of Art. fourteen).
In addition, today a different mechanism is being discussed to ensure the protection of the banking secrecy regime and the confidentiality of personal data by expanding the list of grounds for requesting the appropriate type of information.
Law enforcement practice in the Russian Federation, in essence, recognizes that if personal data was part of the information constituting banking secrecy, then in this case, in the first place, in the criminal law sense, the interests of business entities suffer.
So, in the city of Sosnovy Bor, Leningrad Region, a sentence was passed on an economist of the Department for Work with Individuals of the Tavrichesky Bank, who was found guilty of committing a crime under Part 2 of Art. 183 of the Criminal Code of the Russian Federation. During the consideration of the case, the court found that the bank employee, by virtue of his official position, had access to confidential information containing personal data of bank customers, information about the status of their personal accounts, but was obliged to ensure the confidentiality of this information. By abusing your
official position, in order to collect a debt from a citizen in his favor, he received information about the state of the account of the specified person and provided them to the Russian Ministry of Internal Affairs, Sosnovy Bor, Leningrad Region.
It must be understood that in the case under consideration, not only the so-called “economic object of encroachment” was affected, but also the “personal interests of a citizen”, whose bank account information was misused. In our opinion, in such cases, personal data acts as a unifying category between various objects of encroachment. On the one hand, the subject, committing this crime, violates the legislation on banks and banking activities, since arbitrary and unauthorized use of banking information about a citizen is prohibited by law. On the other hand, the right of a citizen to keep secret information about him, which, by virtue of the law, cannot be freely distributed, is violated.
The opinion has been expressed in the literature that "bank secrecy must be attributed to a variety of private life secrets." D.Yu. essentially agrees with this. Grishmanovsky, pointing out that "disclosure of information about a bank client, about his banking operations and accounts may violate the right of private life." In our opinion, the banking secrecy regime may cover information that relates to personal data, which, among other things, constitutes a secret of private life. But this is more of an exception than a general rule. Therefore, the criminal law protection of personal data that is part of information subject to the regime of banking secrecy also depends on the security of this information - on the established restrictions and prohibitions provided for by the current legislation.
Finally, the last type of secrets, which is protected by Article 183 of the Criminal Code of the Russian Federation, is a tax secret. Article 102 tax code The Russian Federation contains a legal definition of tax secrets, which means any received by the tax authority, internal affairs bodies, investigating authorities, the body of the state off-budget fund and the customs body information about the taxpayer, with the exception of information: that is publicly available, including those that have become such with the consent of their owner; about the identification number of the taxpayer; about violations of the legislation on taxes and fees and measures of responsibility for these violations, etc. . Restrictions and prohibitions legal nature, which are established in relation to information constituting a tax secret, in essence, are expressed in the prohibition of the officials specified in the law to freely transfer and distribute it. At the same time, Order No. BG-3-28/96 of March 3, 2003 of the Ministry of Taxation of the Russian Federation established the Procedure for Access to
confidential information of the tax authorities. In particular, paragraph 12 provides that tax authorities are not allowed to provide databases, data banks, archives, lists of taxpayers and employees of tax authorities containing confidential information, except as otherwise provided by federal law 223 . Thus, the legislator and law enforcement authorities determine the confidentiality of information constituting a tax secret by establishing prohibitive mechanisms in relation to this information.
As in previous cases, tax secrecy is nothing more than a legal regime of information. But the question of the content of this legal regime in the scientific literature is debatable.
So, P.U. Kuznetsov classifies tax secrecy as a kind of professional secrecy or calls it “a special condition of legal
regime of professional secrecy". According to A.V. Torshin, “with regard to tax secrets, the legislator does not define a list of information or information constituting a tax secret, but the so-called confidants, that is, individuals and organizations who, by virtue of their professional activities, under an agreement or on other legal grounds, become aware of information that they have to keep." Agreeing with him, E.V. Shekhovtseva, at the same time, believes that “when establishing a regime of tax secrecy, the legislator indicates as its confidants not commercial organizations, but the relevant state bodies and their officials, as well as the specialists and experts involved by them” .
We believe that the legal regime of tax secrecy in relation to the protection of personal data is determined by the content of the information that is included in this concept. Thus, information about the state of accounts of taxpayers - individuals, their debts or overpayments on taxes and fees, indicating identification data, is also personal data, confidential information, access to which is limited under the regime of tax secrecy. And since article 183 of the Criminal Code of the Russian Federation is devoted, among other things, to the protection of tax secrets, in practice, law enforcement agencies use this article when considering cases related to the misuse of information constituting a tax secret.
In particular, the cassation ruling of the Judicial Collegium for Criminal Cases of the Perm Regional Court in case No. 22-4187-2011 qualified the actions of convict K. under Part 3 of Art. 183 of the Criminal Code of the Russian Federation was recognized as lawful. By the verdict of the court of first instance, it was established that K., being an employee of the inspectorate of the Federal Tax Service, having
access to information constituting a tax secret, and having been warned about the responsibility for disclosing this information, for a fee, he transferred information about the taxpayer to the FSB officer acting as part of the “test purchase” operational-search measure. In the transmitted information material contained information of a confidential nature, in particular: personal data of taxpayers, the state of their debts on taxes and fees, as well as personal accounts.
It should be noted that according to the resource rospravosudie.com, the number of criminal cases under Art. 183 of the Criminal Code of the Russian Federation related to violation of the tax secrecy regime, as well as through illegal use personal data is negligible compared to the number of crimes that infringe on the regime of commercial or banking secrecy.
So, the above analysis showed that criminal encroachments on personal data in their objects are very diverse. And this diversity is manifested in the fact that the criminal law protection of personal data under Russian criminal law is due to the legal regime under which personal data fell before the moment the corresponding crime was committed. It should also be noted that in this context, the analysis of crimes under Art. 137 and 183 was carried out on the basis of established judicial practice in the event of criminal encroachment on personal data.
The legal regime is defined in the scientific literature in different ways. The legal regime is defined as " special order legal regulation, expressed in a certain combination of legal means and creating the desired social condition and a specific degree of favorable or unfavorable to meet the interests
subjects of law". O.S. Rodionov understands the legal regime as "a set of legal means established and provided by the state in order to regulate specific social relations by limiting some and stimulating the activities of individual subjects of law" .
A set of restrictions and prohibitions (the so-called safety rules) N.V. Shchedrin calls it "safety mode". At the same time, the regimes of security measures can, in particular, include: administrative supervision of persons released from places of deprivation of liberty; preventive registration of juvenile delinquents; state secret regime.
We believe that it is necessary to recognize the position according to which the legal regime determines the existence of a system of measures-permissions, measures-restrictions and measures-prohibitions in relation to a specific type of legal relationship and in relation to a specific object. In our case, the object in relation to which these measures are applied will be personal data, which in their content constitute information that falls under the special modes restrictions and prohibitions.
OK. Tereshchenko defines the legal regime of information as “an object regime that makes it possible to ensure the complexity of the impact through a set of regulatory, protective, procedural and procedural means that characterize a special combination of permissions, prohibitions and obligations. At the same time, the specified legal regime has a specific object - information in its non-material legal sense. In addition, “different types of secrets (personal and family,
commercial, banking, tax, etc.), as well as the confidentiality of information, must be considered as special legal regimes of information, since they provide for restricting access; prohibition of transfer to third parties without the consent of the owner of the information; the possibility, as a general rule, of the owner of information to independently decide the issue of maintaining confidentiality; derivative nature of the obligation to maintain the confidentiality of information” 234 .
We emphasize that a secret is precisely a legal regime that establishes restrictions and prohibitions on personal data, since it is the concept of a regime that implies a system of restrictions and prohibitions.
The urgency of combating crimes that are committed with the misuse of personal data is increasing every year, as the world is constantly developing information technologies, and a whole range of individual rights in this regard, it is becoming increasingly difficult to provide proper legal protection.
Difficulties may arise in resolving some specific situations that arise in practice, and most often this is due to the multitude of legal norms that can regulate the same legal institution, but in completely different aspects and with completely different consequences and legal regimes for participants in legal relations.
The problem of delimiting crimes from other offenses is always sharply formulated in criminal law, especially when a new type of social relations appears that previously did not fall under criminal law protection. But in theory, a position has been developed for a long time, according to which the main difference between a crime and other offenses lies in the varying degree of social danger of these acts. At the same time, public danger is recognized as a material sign of a crime, revealing its social essence, which is determined through:
There. S. 323.
1. Assessment of the significance of certain events;
2. The nature and extent of the harm caused by the objects of criminal law protection;
3. Features of the criminal act;
4. Features of gender, age, official position of the subject.
Crimes are the most dangerous types of illegal acts that harm the most important types of social relations, are fundamental to the existence of the entire system of state and law. Hence, the indisputable position is that administrative offenses, although they also have a certain social danger, which can be assessed both in nature and in degree, nevertheless, they are less dangerous compared to crimes.
As E.V. Kobzev, “modern Russian legislation creates a lot of conflict and gap situations related to the ratio of crimes and administrative offenses. A large role in their emergence belongs to the legislative technique. Protective functions of the criminal and administrative law do not allow to give preference to any one of them in overcoming the problems of a conflict nature. Therefore, such collisions must be eliminated in every possible way.
One cannot but agree with this opinion, especially when the legislator exercises active work on the draft of the new Code of the Russian Federation on administrative offenses.
Two articles of the current Code of the Russian Federation on Administrative Offenses are devoted to the legal protection of personal data by the institution of administrative law, in particular:
1. Article 13.11 "Violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data)";
2. Article 13.14 "Disclosure of information with restricted access".
It is obvious that both offenses are associated with the violation of certain rules, the procedure provided for by the current specialized information legislation. But for the purposes of distinguishing between the institution of administrative and criminal liability in relation to an infringement using personal data, the provisions of these norms should be analyzed.
Article 13.11 of the Code of Administrative Offenses of the Russian Federation is devoted to the legal protection of the procedure for the circulation of personal data provided for by law. At the same time, this norm objective side covers a wide range of alternative actions, including: collection, storage, use and dissemination of information about citizens. In essence, this provision of the Code of Administrative Offenses of the Russian Federation establishes that established order circulation of personal information has an increased value for operating system public relations and thus determines the scope of responsibility for its violation. Therefore, violation of the rules for the circulation of personal data through any alternative sign regulated by the Federal Law "On Personal Data" allows you to bring to administrative responsibility any person who violated these rules. At the same time, this rule is completely independent of the legal regime of personal data, the rules for working with which may be potentially violated.
Administrative Code received comments on all articles [Electronic resource]: http://pravo.ru/court_report/view/125551
Article 13.14 of the Code of Administrative Offenses of the Russian Federation, in turn, is devoted to the legal protection of information with restricted access and, in essence, provides for liability for violating the security regime for information, access to which is restricted by federal law. It seems logical that this rule excludes from the scope of regulation cases where the disclosure of such information entails criminal liability, since this excludes unreasonable double legal liability for the same act. This is exactly what was done by the legislator in the Federal Law “On Amendments to the Code of the Russian Federation on Administrative Offenses” dated February 7, 2017 N ° 13-Φ3, where as a delimiting feature was
wording added to Part 1 of Art. 13.11 "if these actions do not contain
criminal offense".
It can be concluded that the legal protection of public relations that develop between subjects regarding the circulation of personal data established by law is carried out situationally, in order to protect information legal relations rather than the rights and freedoms of man and citizen.
At the same time, if we turn to the provisions of the norms of the Criminal Code of the Russian Federation on criminal liability for criminal attacks on personal data, we can find that all of them carry out criminal legal protection of personal human rights provided through personal data, exclusively through the prism of specific information - the legal regime of security, and the violation of such a regime is usually associated with a violation of the rules for working with personal data.
Thus, Article 137 of the Criminal Code of the Russian Federation is devoted to the criminal law protection of privacy and prohibits, under the threat of criminal liability, the illegal collection or dissemination of personal data constituting personal and family secrets, or the dissemination of such information. Not all personal information is subject to protection, but only that which falls under the legal regime of personal and family secrets.
Thus, the norms on administrative and criminal liability for infringement of personal data differ significantly, since the norms of the Code of Administrative Offenses of the Russian Federation establish liability for violating the procedure for working with personal data, and the norms of the Criminal Code of the Russian Federation - for violating the inviolability of personal data subject to under the appropriate legal regime of protection.
As a working hypothesis, the author initially put forward the assumption that in the system of existing criminal law norms, special norms could appear that provide for the criminal law protection of personal data. However, in the process of carrying out research on this issue, this hypothesis did not receive its confirmation in connection with the following.
The rationale for the introduction of a particular criminal law norm into the criminal law is carried out with the help of the provisions put forward by the theory of criminalization. As A.D. Antonov, “criminalization, being the main component criminal law policy, represents "the declaration of socially dangerous acts as a crime" . It is the theory of criminalization that develops the grounds and principles for the emergence of new norms in the criminal law that protect the relevant objects.
In the literature today there is no consensus on how the criminalization of the relevant acts as criminal is carried out. There is a lot of scientific discussion about this.
So, N.A. Lopashenko believes that “the criminalization of acts should be based on reasons, grounds and principles. At the same time, the existence of socially dangerous behavior, which requires a criminal law prohibition, is considered as a basis.
A.I. Korobeev pays great attention to the grounds for criminalization, highlighting the following:
"one. Legal and criminological grounds (the degree of public danger; the prevalence and typicality of acts; the dynamics of acts, taking into account the generating causes and conditions; the possibility of influencing them with criminal legal means in the absence of the possibility of fighting with other measures, as well as the possibility of the criminal justice system);
2. Socio-economic grounds (damage caused by acts; absence of negative consequences of a criminal law prohibition; availability of material resources for its implementation);
3. Socio-psychological foundations (the level of public legal consciousness and psychology; historical traditions) ".
HELL. Antonov offers a similar system of grounds for criminalization, however, he presents a slightly different content of the same groups of grounds.
We believe that we should agree with the allocation of the above several groups of grounds for criminalizing the relevant acts, since the criminal law protection of the relevant relations should be carried out in the presence of objective prerequisites. Criminalization is not
can have only one basis, since a criminal act damages the entire system of social relations.
An important factor in justifying the criminalization of the relevant act is the absence of its redundancy due to the introduction of a new criminal law norm into force, as well as the sufficiency of criminalization. “Spaceless” and “non-redundant” criminalization are called A.D. Antonov "systemic principles of criminalization". As an example of excessive criminalization, the author cites the content of Art. 213 of the Criminal Code of the Russian Federation (at that time the concept of hooliganism included a violation of public order, accompanied by the destruction or damage to other people's property), while part 1 of Art. 167 of the Criminal Code of the Russian Federation already provides for criminal liability for the deliberate destruction or damage to another's property.
If, in order to test the initially put forward working hypothesis that criminal encroachments on personal data need to be criminalized, an analysis is made from the standpoint of the theory of criminalization, then a number of conclusions can be drawn.
First, we have previously argued that attacks on personal data have a high degree of public danger, since, on the one hand, they violate not only the right to privacy, but also a number of other constitutional rights. Secondly, in last years criminal encroachments on personal data only increase the momentum. As statistics show, an increasing number of people are becoming victims of the theft of their personal data, as well as victims of other crimes that were committed through the illegal use of personal data. Thirdly, criminal attacks on personal data cause serious damage not only to the subjects themselves
personal data, but also the entire system of social relations. In addition, the introduction of measures criminal law impact on criminal encroachments on personal data streamlines the system of public relations regarding their legal circulation and use.
At the same time, we have found that personal data may be subject to various legal privacy regimes (personal and family secrets, trade secrets, bank secrets, tax secrets). As a result, only that kind of personal data that is confidential is in danger - keeping this or that information secret is the key to maintaining the system of public relations.
With the introduction of special criminal law protection of criminal encroachments on personal data, the redundancy of criminalization inevitably arises. This is primarily due to the fact that the relevant legal regimes for the confidentiality of personal data are already subject to criminal law impact through the relevant provisions of the Criminal Code of the Russian Federation (Art. 137, Art. 183).
In addition, it seems that it would be unreasonable and unjustified to criminalize such attacks on personal data that would not violate the appropriate regime of their confidentiality - we have established above that a sufficiently large amount of personal data may not be subject to restricted access in cases established by law. Meanwhile, there is no public danger for such acts in the criminal law sense, and violation of the rules for working with personal data is already an object of protection from the norms of administrative law (Article 13.11 and Article 13.14).
Thus, selection special rule dedicated to criminal liability for criminal attacks on personal data from the standpoint of the theory of criminalization would be
inappropriate and would speak of the redundancy of criminal law regulation.
The legal regime of personal data is a decisive factor in justifying their criminal law protection. Earlier, we considered the issue that the regime nature of information legal relations is largely due to the fact that the legislation of the Russian Federation establishes special legal restrictions and prohibitions in relation to various types of information. Therefore, protective criminal relationship(which is usually considered as one of the stages of criminal law impact) in relation to personal data cannot arise if the security rule (restriction or prohibition) established by the special legal regime of personal data is not violated - the regime of personal or family secrets, the regime of commercial, banking, tax secrecy. This explains the fact that the criminal law protection of personal data is carried out within the framework of secret regimes established by law.
Chapter 1. Criminal-legal aspect of the content of property relations
1.1. The essence of property as a civil law category in the study of the object and subject of crimes against property
1.2. Characteristics of property as an object of criminal law protection
1.3. Features of the subject of crimes related to the destruction or damage to property
Chapter 2 Problematic issues criminal liability for criminal encroachments on property related to the destruction or damage to another's property
2.1. The emergence and development of criminal law on liability for the criminal destruction or damage to property
2.2. Peculiarities of the criminal-legal characteristics of compositions providing for liability for intentional and negligent destruction or damage to another's property, according to the Criminal Code of the Russian Federation SW
2.3. Problems of delimitation of crimes under Art. 167 and 168 of the Criminal Code of the Russian Federation, from related structures
Recommended list of dissertations
Criminal liability for the destruction or damage of another's property under the Criminal Code of Russia 2002, candidate of legal sciences Fayzrakhmanova, Leysan Minnurovna
Criminal-legal problems of real estate protection in Russia 2006, candidate of legal sciences Zherebchikov, Igor Vladimirovich
Destruction or damage to property: problems of qualification and correlation with related offenses: Based on the materials of the judicial practice of the Krasnodar Territory 2005, candidate of legal sciences Plyutina, Elena Mikhailovna
Criminal liability for vandalism 2004, candidate of legal sciences Cheremnova, Natalya Aleksandrovna
Funeral culture as an object of criminal law protection 2011, candidate of legal sciences Ismagilov, Rinat Albertovich
Introduction to the thesis (part of the abstract) on the topic "Property as an object of criminal law protection from criminal encroachments related to the destruction or damage of another's property"
The relevance of the topic of dissertation research. In the context of the democratization of Russian society, the role of social relations associated with the right to property has increased significantly. And this is not accidental, because, as you know, one of the socially significant institutions, the content of which presupposes the basis of all social development at each of its stages, is property. The role and significance of the considered economic category in the life of Russian society is evidenced by the fact that the legal form of property relations - the right of ownership - forms the largest civil law institution. Traditionally, the norms protecting property have been elaborated in detail in the criminal legislation.
It should be noted that in recent years there have been significant changes in legal form, and the real content of property relations. The Constitution of the Russian Federation no longer defines property as the “basis of the economic system” of society, proclaiming in Article 2 the rights and freedoms of a person highest value recognition, observance and protection of which is the responsibility of the state. Citizens of Russia, participating in property relations, acquire a complex complex property rights and interests. The protection of the latter becomes an important task modern law. Criminal law plays a certain role in the implementation of this task.
The current criminal legislation has devoted 11 articles (158-168 of the Criminal Code of the Russian Federation) to crimes against "property", constituting Chapter 21. The elements of crimes provided for by these articles form regulatory framework fulfillment of the task of legal protection of property facing the criminal law.
These norms include Art. 167 and 168 of the Criminal Code of the Russian Federation "Intentional destruction or damage to property" and "Destruction or damage to property through negligence." The problem of protecting property from these encroachments is relevant, since when property is destroyed or damaged, individuals and legal entities are deprived of significant material values or the ability to use their property in accordance with its intended purpose and benefit from its properties.
At present, infringements against property continue to dominate in the structure of crime. Among these crimes, a special place is occupied by the destruction and damage of other people's property (Articles 167 and 168 of the Criminal Code of the Russian Federation), since these acts simultaneously cause harm (or threaten to cause harm) to the life or health of an individual. In addition, a socially dangerous act under Art. 167 of the Criminal Code of the Russian Federation, is the most common of crimes against property that are not theft. Thus, in 2005, 51,974 crimes under Art. 167 of the Criminal Code and 177 acts under Art. 168 of the Criminal Code. In 2006, the number of such attacks was 60473 and 1150, respectively, in 2007 - 53166 and 940, in 2008 - 49700 and 957, in 2009 - 47060 and 9921.
It should be noted that the essence of the destruction and damage of other people's property lies in the fact that as a result of these acts, property is permanently withdrawn from economic circulation and consumption, or it is involved in such circulation only if there are significant costs for its restoration. This circumstance requires constant improvement of the theory and practice of the criminal law fight against these acts.
1 See: The state of crime in Russia for 2005 - M:: GIAC of the Ministry of Internal Affairs of Russia, 2006; The state of crime in Russia in 2006 - M .: GIAC of the Ministry of Internal Affairs of Russia, 2007; The state of crime in Russia in 2007 "- M .: GIAC of the Ministry of Internal Affairs of Russia, 2008; The state of crime in Russia for January-December 2008 - M .: GIAC of the Ministry of Internal Affairs of Russia, 2009; The state of crime in Russia for January-December 2009 - M.: GIAC of the Ministry of Internal Affairs of Russia, 2010.
An analysis of judicial practice shows that intentional destruction or damage to property often takes place on the basis of family conflicts and long-term hostile relationships between acquaintances. Therefore, a significant number of these crimes are latent, and the persons who committed them; remain outside the scope of criminal law.
For the prevention of crimes under Art. 167 and 168 of the Criminal Code of the Russian Federation, great importance acquires the effective application of criminal law measures to combat the destruction or damage to property. Such crimes are classified as difficult for legal analysis of crimes. Law enforcement agencies often face difficulties in their qualifications. Difficulties arise in determining the subject of encroachment, expressed in the destruction or damage to property. Many difficulties arise in establishing an objective and subjective side these crimes. Many problems of delimitation of crimes provided for by Art. 167 and 168 of the Criminal Code of the Russian Federation, with related compositions.
In this regard, the problems of increasing the effectiveness of the fight against criminal encroachments on property associated with the destruction or damage of other people's property, through the use of criminal law measures, are of particular relevance to the science of criminal law and law enforcement.
Based on the foregoing, research in this direction is very relevant from a scientific point of view, and may also have a practical refraction if the formulated proposals are accepted for further improvement of Russian criminal legislation establishing responsibility for the destruction or damage to property.
The degree of development of the research topic. The problem of criminal law protection of property in domestic legal science has been and is being given much attention. A significant contribution to its development in different years was made by such famous scientists as: A.G. Bezverkhov, G.N. Borzenkov, V.V. Veklenko, G.V. Verina, V.A. Vladimirov, B.V. Volzhenkin, B.S. Volkov, Z.A. Vyshinskaya, L.D. Gaukhman, M.A. Gelfer, S.A. Eliseev,
A.A. Zhizhilenko, V.D. Ivanov, H.F. Ivanov, M.M. Isaev, S.M. Korabelnikov, S.M. Kochoi, G.A. Krieger, JI.JI. Krutikov, B.A. Kurinov, V.N. Kutz,
B.D. Larichev, V.N. Litovchenko, H.A. Lopashenko, Yu.I. Lyapunov, C.B. Maksimov, V.P. Malkov, V.V. Maltsev, P.S. Matyshevsky, B.C. Minskaya, N.I. Panov, A.A. Pinaev, A.A. Piontkovsky, C.B. Poznyshev, P.G. Ponomarev, V.P. Revin, A.I. Santalov, V.N. Safonov, T.L. Sergeeva, S.I. Orphan,
C.B. Sklyarov, S.A. Tararukhin, I.S. Tishkevich, B.C. Ustinova, B.S. Utevsky, I.Ya. Foinitsky, A.B. Khabarov, A.I. Chuchaev, M.D. Shargorodsky, M.I. Yakubovich, P.S. Yani, V.B. Yastrebov, B.V. Yatselenko and others. Particular attention is paid to the object and subject of these crimes in the works of A.I. Boytsova, N.V. Vishnyakova, I.A. Klepitsky, V.N. Kudryavtseva, E.A. Mazurenko, E.S. Tenchova, E.A. Frolova, A.B. Shulgi, A.Z. Huna etc.
General issues of the object and subject of the crime in different years were considered by many scientists, which include: L.S. Belogrits-Kotlyarovsky, P.P. Galiakbarova, E.V. Georgievsky, V.K. Glistina, Yu.A. Demidova, N.I. Zagorodnikova, P.V. Zamoskovtseva, N.I. Korzhansky, V.A. Krasnopeeva, L.L. Kruglikova, V.N. Kudryavtseva, V.D. Menshagina, M.P. Mikhailova, A.B. Naumova, B.S. Nikiforova, G.P. Novoselova, A.A. Pi-ontkovsky, C.B. Poznysheva, V.D. Spasovich, N.D. Sergievsky, N.S. Tagantseva, V.Ya. Tatsia, A.N. Trainina, I.Ya. Foinitsky and others.
Features of criminal liability and punishment for the destruction and damage to property at different times were studied in dissertation research by I.I. Kovalenko, V.F. Kolyshkina, S.A. Lobova, E.V. Nikitina, L.M. Fayzrakhmanova, V.V. Kharitoshkina, Yu.M. Shangina, A.M. Sharipova and others.
All named* authors have made a significant contribution to the development of theoretical problems crimes against property, and, in particular, the destruction of damage to another's property. However, the study of scientific provisions and judicial practice allows us to conclude that there are still unused opportunities for improving criminal legislation on liability for the destruction and damage to property and the practice of its application.
Object and subject of research. The object of the dissertation research is social relations that develop over the commission of criminal encroachments on property relations. The subject of the dissertation research is the norms of the Russian criminal legislation, which determine the responsibility for socially dangerous acts, expressed in the destruction or damage to property; their content, trends in development and improvement, practice of application, as well as the norms of Russian civil law regulating the institution of property as an object of criminal law protection.
Purpose and objectives of the study. The purpose of the dissertation research is to formulate and substantiate theoretical conclusions in the field of criminal law protection of property relations from criminal encroachments related to the destruction or damage to property based on historical experience, scientific research and empirical data.
To achieve this goal, the following tasks are set:
Consider the content of property as an object of legal protection;
To give criminal characterization the subject of crimes related to the destruction or damage to property;
To study the historical experience of regulating liability for the destruction or damage to property in Russian criminal law;
To carry out a scientific analysis of Art. 167 and 168 of the Criminal Code of the Russian Federation, establishing responsibility for these crimes;
Reveal the features of delimitation of destruction or damage to property as a criminal encroachment on property with related compositions;
Develop evidence-based proposals for improving criminal legislation and law enforcement practice, aimed at increasing the effectiveness of the fight against crimes under Art. 167 and 168 of the Criminal Code of the Russian Federation.
Methodology and research methods. The dissertation research is based on the general scientific dialectical method of cognition, within the framework of which particular scientific methods were used: formal-logical, historical-legal, comparative-legal, system analysis, as well as special criminological and concrete sociological methods: collection, generalization and analysis of documents, statistical data and materials of criminal cases, questionnaires and expert surveys.
In the course of the study, special scientific literature was used in the field of philosophy, theory of law, constitutional, administrative, civil, criminal, criminal procedure law, criminology and other sciences, which largely predetermined the complex nature of this study.
Regulatory framework studies are: the Constitution of the Russian Federation, federal law: Criminal Code of the Russian Federation, Code of Criminal Procedure of the Russian Federation, Criminal Executive Code of the Russian Federation, Civil Code of the Russian Federation, the Code of the Russian Federation on Administrative Offenses and other laws. As part of the dissertation
Following were studied the monuments of Russian law, legislative acts Russia in the 11th-19th centuries, as well as the norms of criminal legal acts council
1st period.
The scientific novelty of the dissertation research is determined by the fact that it examines criminal law measures to combat the destruction or damage of property at the monographic level, develops criminologically sound proposals for improving the legislative structure and practice of applying criminal law norms providing for liability for acts expressed in the destruction or property damage. In particular:
The social, economic and legal significance of the destruction or damage to someone else's property has been studied;
The problems of delimitation of encroachments, enshrined in Art. 167 and 168 of the Criminal Code of the Russian Federation, from other crimes related to the destruction or damage to property;
Significant shortcomings of the criminal legislation in the field of property protection from destruction or damage to property are revealed.
The novelty of the work is also manifested in the main provisions submitted for defense:
1. Due to the fact that in Russian criminal law there is no single conceptual approach to the definition of generic and specific objects of criminal attacks related to the destruction or damage to property, the author, taking into account the commonality of the generic and direct objects of these crimes, substantiates the expediency of combining the rules on responsibility for the destruction or damage of various property under one chapter of Title VIII " Crimes-in the sphere Economy” of the Criminal Code of the Russian Federation.
2. The provision specified by the author that the object of criminal law protection in Chapter 21 of the Criminal Code of the Russian Federation, along with property relations, should also be recognized as a limited real right. This is evidenced by the analysis of the provisions of civil law (Articles 209, 216, 265, 268, 274, 277 and 296 of the Civil Code of the Russian Federation) that the real rights of a person who is not the owner are protected by the state from their violation by other persons.
3. The author's position, which consists in the fact that the subject of crimes related to the destruction or damage of property should be recognized as property in the form of movable or immovable things, money, securities, which has a certain value, which does not belong to the guilty person on a legal basis, by illegally influencing which violates the rights of the owner or other owner. Unlike other crimes against property, the subject of crimes under Art. 167 and 168 of the Criminal Code of the Russian Federation, the find should be attributed, because according to part 4 of Art. 227 of the Civil Code of the Russian Federation, the finder of the thing is liable for its loss or damage in case of intent or gross negligence and within the limits of the value of the thing. Therefore, as long as the find does not legally become the property of the finder, it should be considered as the subject of the compositions of the destruction or damage to property.
4. The author's proposal that in order to more clearly distinguish between the criminally punishable destruction or damage to property (part 1 of article 167 of the Criminal Code of the Russian Federation) from a similar administrative offense (article 7.17 of the Code of Administrative Offenses of the Russian Federation), art. 167 of the Criminal Code of the Russian Federation must be supplemented with the following Note: “Intentional destruction or damage to another's property entails criminal liability if the cost of the destroyed property or the cost of restoring the damaged property exceeds two thousand five hundred rubles. In this case, significant damage is determined taking into account the property status individual or financial position legal entity". li; ". ."■ "■
5. The provision proposed by the author that for the most effective countermeasures against intentional destruction or damage to other people's property in Part 2 of Art. 167 of the Criminal Code of the Russian Federation should provide for such qualifying signs; as: "the commission of these acts by a group" of persons with prior conspiracy or an organized? group", "on a large scale". .
6. The author's position, consisting in the fact that it is necessary to revise the approach of the legislator to the definition of signs of an act under Art. 168 of the Criminal Code of the Russian Federation. In particular, it is proposed to consider that major damage should be a mandatory sign of the destruction or damage to property through negligence. At present, the concept of a large size in relation to Art. 168 of the Criminal Code of the Russian Federation is formalized, and its boundaries are clearly marked in Note 4 to Art. 158 of the Criminal Code of the Russian Federation. However, when recognizing a person as guilty of committing crimes, in the norms on liability for which a large amount is determined, it should be established that the person was aware of the fact that the amount of the deed is large. This cannot be done in a careless act, to which the crime under Art. 168 of the Criminal Code of the Russian Federation.
Delete from Art. 243 of the Criminal Code of the Russian Federation, liability for the destruction or damage to objects or documents of historical or cultural value, 1
Delete from Art. 244 of the Criminal Code of the Russian Federation, responsibility for the destruction or damage of tombstones, structures or cemetery buildings; stating Part 1 as follows: “1. Desecration of the bodies of the dead or desecration of burial sites; tomb structures - or cemetery buildings intended for ceremonies in connection with the burial of the dead or their commemoration - are punished.”;
Delete from Art. 267 of the Criminal Code of the Russian Federation, liability for the destruction, damage or otherwise making the vehicle unusable.
These actions should be qualified under Art. 167 of the Criminal Code of the Russian Federation, thereby recognizing objects or documents of historical or cultural value, grave structures, cemetery buildings and vehicles as the subject of this criminal act.
8. The author's statement that it seems disproportionate punishability of criminal acts under Art. 167 of the Criminal Code of the Russian Federation, in comparison with theft and other encroachments on property, tk. as a result of the destruction or damage of someone else's property, property is permanently withdrawn from economic circulation and consumption, or it is involved in such circulation only if there are significant costs for its restoration.
167, 168 and notes 4 to article 158 of the Criminal Code of the Russian Federation, which is fully contained in the text of the dissertation.
The theoretical significance of the study lies in the fact that the generalizations, conclusions and proposals contained in the work make a significant contribution to the development of criminal law theory on the offenses considered in the study, and can also be used: in legislative activities to improve the current criminal legislation in the field of property protection from criminal acts in the form of destruction or damage to property. As a result* of the study, new criminal law knowledge has been obtained regarding socially dangerous acts related to the destruction or damage to someone else's property. In addition, the work makes a certain * contribution to the general theory of criminal law and criminology as their private section devoted to crimes against property.
The practical significance of the study lies in the fact that the conclusions and proposals contained in the dissertation can be used:
In practice law enforcement and bodies administering justice in the course of applying the relevant legal norms;
With the improvement of legislation providing for criminal liability for infringement on property and on public morality;
For further scientific criminal law and criminological research concerning, first of all, crimes against property, when writing monographs, scientific articles and study guides;
In the educational process educational institutions of a legal profile in the study of the disciplines "Criminal Law", "Criminology", as well as related disciplines of specialization.
The validity and reliability of the results of the study is ensured by its complex nature, the chosen methodology and the collected empirical material. The empirical base of the study was data on registered crimes against property and other acts related to the destruction or damage of property, received by the State Research Center of the Ministry of Internal Affairs of Russia for 2000-2009, the Central Internal Affairs Directorate for Voronezh, the Internal Affairs Directorate for Kursk and Lipetsk regions for the same period. The choice of these regions is connected with their territorial, demographic and economic community.
In the course of the study, materials of 358 criminal cases under Art. 167 of the Criminal Code of the Russian Federation, 152 criminal cases under Art. 168 of the Criminal Code of the Russian Federation, 67 criminal cases under Art. 214, 2152, 244, 325, 326 of the Criminal Code of the Russian Federation, considered by the courts of the Voronezh, Kursk and Lipetsk regions. The number of studied criminal cases is quite representative, since it makes up 10-12% of the total number of cases in this category. The practical experience of the author's work in the prosecutor's office of the Voronezh region was also used.
Approbation of research results and implementation. The results of the dissertation research were tested at scientific and practical conferences, seminars, round tables", in which the author took part, held in Voronezh (international scientific and practical conference "Ensuring public security in the Central Federal District of the Russian Federation" - May 17, 2007 Voronezh Institute of the Ministry of Internal Affairs of Russia; All-Russian seminar "Problems of preventing crime and other negative phenomena in adolescence and youth” - May 27, 2008 Voronezh Institute of the Ministry of Internal Affairs of Russia; annual scientific sessions of the Voronezh Institute of Economics and Law).
The results of the dissertation research are introduced into the educational process of the Voronezh Institute of Economics and Law. Separate provisions of the dissertation are used in the practical activities of the Central Internal Affairs Directorate and the Office of the Federal Bailiff Service in the Voronezh Region.
The structure of the dissertation corresponds to its purpose, objectives, object and subject and consists of an introduction, two chapters, combining six paragraphs, a conclusion, a bibliography and applications.
Similar theses majoring in Criminal Law and Criminology; penal law”, 12.00.08 VAK code
Criminal liability for intentional destruction and damage to property 2000, candidate of legal sciences Nikitina, Ekaterina Valerievna
Criminal liability for illegal felling of trees and shrubs, destruction or damage to forests: Based on materials from the Far East Region 2006, Candidate of Legal Sciences Sharipova, Olga Veniaminovna
Criminological and criminal law measures to counter illegal logging, destruction or damage to forest plantations: on the example of the Northwestern Federal District of the Russian Federation 2010, candidate of legal sciences Selyakov, Nikolay Anatolyevich
Responsibility for encroachments on fire safety: criminal law and criminological analysis 2011, candidate of legal sciences Shikanov, Alexey Alexandrovich
Qualification of crimes against property of citizens 1991, candidate of legal sciences Verina, Galina Vladimirovna
Dissertation conclusion on the topic “Criminal law and criminology; penal law”, Shishkin, Nikolay Anatolyevich
CONCLUSION
The conducted research allows us to formulate the following theoretical and practical conclusions.
1. Determining the content of the object of crimes against property should be based on an understanding of the economic and legal nature of property relations.
Property in the economic sense is the ratio of the assignment of material goods to a certain person. The content of this relationship is the ability of the owner, at his own discretion and regardless of anyone's will, to use his material goods in order to obtain income or satisfy needs, while eliminating all other persons from them.
The legal content of property relations is the powers of the owner or other owner of the property. The right of ownership is the broadest right in terms of content, which gives the opportunity to its owner - the owner (and only him) to exercise complete "economic dominance" over his property.
In the criminal law literature, scientists define in different ways the volume of social relations that the concept of “property” includes. In our opinion, property should be considered as a category that combines both aspects (economic and legal). On the one hand, these are relations between people regarding the appropriation of material goods, on the other hand, the powers of the owner protected by the state. It is in this unity that property is protected by criminal law.
Analysis of the provisions of civil legislation on limited rights in rem (the right of lifetime inheritable possession of a land plot, the right of permanent (perpetual) use land plot, easements, law economic management property and the right of operational: property management (Articles 209, 216, 265, 268, 274, 277 and 296 of the Civil Code of the Russian Federation)) according to i allows us to say that the real rights of a person who is not the owner are also protected by the state from their violations” by others. Therefore, the object of criminal law protection in Chapter 21 of the Criminal Code of the Russian Federation, along with property relations, should also be recognized as a limited real right.
2. The generic object of crimes, expressed in the destruction or damage of someone else's property, should be recognized as emerging and functioning in accordance with the law of economic relations, reflecting the established order in society for the movement of material goods at all stages of production, distribution, use, to which the criminal encroachment is directed. It is in the dynamics of property relations that they are affected by the credit and banking, tax, financial and other varieties of the state's economic policy.
The specific object of these encroachments are relations based on the law, reflecting the state of belonging of material goods to their owner, to whom a real threat of harm is caused or created. Any encroachment on property violates the state of belonging of material goods to their owner and, thereby, deprives him of the opportunity to actually own these values and use them at his own discretion.
The direct object of the criminal acts, under Art.Article. 167 and 168 of the Criminal Code of the Russian Federation, it is necessary to consider relations consisting in the implementation by the subject, in accordance with the law, of the actual powers of possession, use and disposal of property, which are violated as a result of a criminal offense.
3. Consideration of property as the subject of criminal encroachments on property, expressed in the destruction and. damage to property, was based on understanding the content of physical, economic, social and legal features.
The physical sign of the subject of the crime, which implies the availability of one or another object of the material world for perception, allows, under the appropriate conditions, to qualify under Art. 167 of the Criminal Code of the Russian Federation intentional destruction or damage to documents embodying the rights of claim of a property nature (for example, an IOU, a contract).
An analysis of the legal sign of the subject of crimes related to the destruction or damage of another's property showed that such a subject includes: a) property that is shared ownership(because it constitutes a relatively independent object of civil rights); b) the property of legal entities, with the exception of institutions and unitary enterprises, in respect of whose property the participants retain property rights. At the same time, the following are not the subject of the crimes under consideration: a) ownerless property; b) jointly acquired property of the spouses, not divided between them after the divorce; c) property that is in common joint ownership (because such property is not alien to the participants in joint ownership); e) things in the grave (because their destruction or damage does not violate property relations).
Thus, the subject of crimes related to the destruction and damage of property should be recognized as property in the form of movable or immovable things, money, securities, which has a certain value, does not belong to the guilty person on a legal basis, through illegal influence on which the rights of the owner or other rights are violated. owner.
The study of the norms, civil legislation allows us to attribute to the subject of crimes provided for by Art. 167 and "168 of the Criminal Code of the Russian Federation, a find, because according to part 4 of article 227 of the Civil Code of the Russian Federation, the finder of the thing is liable for its loss or damage in case of intent or gross negligence and within
5 item cost. Therefore, as long as the find does not legally become the property of the finder, it must be considered as the subject of compositions for the destruction or damage to property.
4. Acts related to the destruction and damage to property have always been considered in Russian law as independent crimes against state, public and personal property of citizens. An analysis of domestic legislation showed that the protection of property from destruction or damage has been given attention since ancient times.
Deliberate destruction and damage to property in Russian criminal law has traditionally been considered a crime of minor gravity, with the exception of arson, which until 1917 was considered one of the most serious crimes. After that, the experience of the previous legislation was rejected, the rule on arson was significantly simplified, and, starting from the Criminal Code of the RSFSR of 1926, it was merged into a single composition with a simple destruction or damage to property. The Criminal Code of the Russian Federation of 1996 recognizes arson as a qualifying sign of the deliberate destruction or damage of another's property (part 2 of article 167), while not recognizing arson as a serious crime.
5. Modern legislation The Russian Federation contains a large number of norms indicating the destruction and damage of property as a type of socially dangerous behavior. An analysis of the norms of the Special Part of the Criminal Code shows that the terms “destruction” and “damage” to property are used in various crimes (Articles 167,168, 214, 2152, 243, 244, 259, 260, 261, 267,281, part 1 of Article 325 , part 1 of article 326, article 346, 347). Thus, we can say that in the Russian criminal legislation there is no conceptual approach to the definition of generic and specific objects of criminal attacks related to the destruction and damage to property. It seems appropriate to unite the norms on liability for the destruction or damage of various property within the framework of a separate chapter of the Special Part of the Criminal Code of the Russian Federation. Taking into account the commonality of the immediate object with the generic one, this chapter should be placed in section VIII "Crimes in the "sphere of the economy".
In our opinion, the destruction of property should be understood as the unlawful, guilty impact of a person on someone else's property, in which the latter becomes completely unsuitable for further use for its intended purpose.
Damage to property is an unlawful, guilty infliction of harm to someone else's property, resulting in a partial deprivation of its economic value and the inability to use it for its intended purpose until restoration and correction.
6. According to the legislative structure, the composition of the crime provided for in Art. 167 of the Criminal Code, - material. This means that the destruction or damage to property is considered completed from the moment of causing significant damage.
Study and analysis of 358 court verdicts under Art. 167 of the Criminal Code of the Russian Federation, issued by the courts of the Voronezh, Kursk and Lipetsk regions, showed that the investigating and judicial authorities do not always take into account and establish the circumstances that testify to the infliction of significant damage as a result of the destruction or damage to property. As a rule, the mere fact of committing the above acts with causing damage in excess of 2,500 rubles is sufficient to bring a person to criminal responsibility.
In our opinion, the bodies of preliminary investigation when initiating a criminal case under Art. 167 of the Criminal Code of the Russian Federation and the courts, when considering it, should not impute a sign of significant damage caused without sufficient substantiation of it in the materials of the criminal case or based only on the opinion of the victim regarding such damage.
In order to properly delimit the act, under Part.1 Article. 167 of the Criminal Code of the Russian Federation, from a similar offense under Art. 7.17 of the Code of Administrative Offenses of the Russian Federation, it is advisable Art. 167 of the Criminal Code shall be supplemented with the following note: "Intentional destruction or damage to another's property entails criminal liability if the cost of the destroyed property or the cost of restoring the damaged property exceeds two thousand five hundred rubles."
Considering that as a result of intentional destruction or damage to someone else's property, the damage may be different in its value terms, then in Part 2 of Art. 167 of the Criminal Code of the Russian Federation, it is necessary to provide for such a qualifying sign as the commission of these acts on a large scale.
7. A mandatory sign of the destruction or damage to property through negligence (Article 168 of the Criminal Code of the Russian Federation) is the commission of this act on a large scale. At present, the concept of a large size in relation to Art. 168 of the Criminal Code of the Russian Federation is formalized and its boundaries are clearly marked in Note 4 to Art. 158 of the Criminal Code of the Russian Federation. However, when recognizing a person as guilty of committing crimes, in the norms on liability for which a large amount is defined, it should be established that the person was aware of the fact that the amount of the deed was large. This cannot be done in a careless act, to which the crime under Art. 168 of the Criminal Code of the Russian Federation. Therefore, it is necessary to reconsider the legislator's approach to determining the signs of an act under Art. 168 of the Criminal Code of the Russian Federation. It seems that major damage should be a mandatory sign of the destruction or damage to property through negligence.
In this regard, the disposition of Art. 168 of the Criminal Code of the Russian Federation it is proposed to state as follows: “Destruction or damage to another's property committed by careless handling of fire or other sources heightened danger causing major damage, -.
At the same time, in note 4 to Art. 158 of the Criminal Code of the Russian Federation, it is necessary to fix: “A large amount (large damage) in the articles of this chapter is recognized as the cost of property or the cost of restoring damaged property in excess of two hundred and fifty thousand rubles”;
8. The study of the current criminal legislation and the practice of its application showed the imperfection of the criminal law in the fight against the criminal destruction or damage of other people's property. In particular, statistics show that approximately 20% of all registered under Art. 167 of the Criminal Code of the Russian Federation "crimes" are committed as part of criminal groups. Therefore, there is a need to introduce into the offense provided for in Article 167 of the Criminal Code of the Russian Federation, as a qualifying sign, an indication of the commission of the act in question by a group of persons by prior agreement or by an organized group.
9. Analysis of the signs of offenses that are related to Art. 167 and 168 of the Criminal Code of the Russian Federation, indicates that the special physical signs of property have an independent criminal law value, defining a special legal nature certain types property and delimiting them from crimes against property.
Unlike the corpus delicti under Art. 167 of the Criminal Code of the Russian Federation, vandalism (Article 214 of the Criminal Code of the Russian Federation) consists in defiling buildings or other structures, damaging property on public transport or other in public places. At the same time, defilement should be understood as giving buildings or other structures or their parts a look that is offensive to public morality (for example, making inscriptions and drawings on buildings or other structures that are obviously obscene or maliciously cynical, offensive to others, violating the general external or internal appearance these buildings or structures or causing significant damage to their aesthetic qualities.
Desecration does not imply damage to the building in terms of value. Therefore, if, during desecration, a person causes damage to a building or structure, causing significant damage, the actions must be qualified according to the totality of Art. 214 and 167 of the Criminal Code of the Russian Federation.
It seems inconsistent position of the legislator, who established criminal liability for the destruction and damage of objects and documents of special value, in Art. 243 of the Criminal Code of the Russian Federation, and for the theft of these items - in Art. 164 of the Criminal Code of the Russian Federation; for the theft of a vehicle - Art. 166 of the Criminal Code of the Russian Federation, and for its destruction (destruction) and damage - in Art. 267 of the Criminal Code of the Russian Federation.
In our opinion, liability for the destruction or damage to items or documents of particular value should be provided for in Part 2 of Art. 167 of the Criminal Code of the Russian Federation.
With regard to the composition of the crime, enshrined in Art. 244 of the Criminal Code of the Russian Federation, it can be noted that the property located on the grave is not rejected by its owner or owner, and therefore it is alien to everyone else. Therefore, encroachments in the form of destruction or damage to grave structures should be considered according to the norms of Chapter 21 of the Criminal Code of the Russian Federation. In this regard, it is necessary to amend the wording of Art. 244 of the Criminal Code “Desecration of the bodies of the dead and places of their burial”, stating part 1 as follows: “1. Desecration of the bodies of the dead or desecration of burial sites, tomb structures or cemetery buildings intended for ceremonies in connection with the burial of the dead or their commemoration, are punishable.
It seems that the destruction and damage of cemetery buildings and structures, both intended and not intended for ceremonies in connection with the burial or commemoration of the dead, if there are appropriate signs, must also be qualified under Art. 167 of the Criminal Code of the Russian Federation.
In order to properly qualify criminal offenses against vehicles, it seems appropriate to amend "Article 267 of the Criminal Code of the Russian Federation, excluding from it liability for the destruction, damage or otherwise rendering the vehicle unusable. Thus, such actions will unequivocally fall under the signs of intentional destruction or damage to property (Article 167 of the Criminal Code of the Russian Federation).
10. Destruction or damage of other people's property as a criminal encroachment on property when causing approximately equal damage to the owner, in our opinion, is a more dangerous crime compared to various forms of theft and other encroachments on property, since in this case property is withdrawn from economic circulation and consumption forever or it is involved in such a turnover only if there are significant costs for its restoration. With this approach to assessing the social, economic and legal significance of the destruction and damage to other people's property, the disproportionate criminal liability of the considered criminal acts under the Criminal Code of the Russian Federation is obvious in comparison with theft and other encroachments on property. Therefore, it is necessary to strengthen the criminal liability under the Criminal Code of the Russian Federation for the deliberate destruction and damage of property.
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204. Petrov I.F. Criminal-legal and criminological issues of the fight against extortion: Dis. . cand. legal Sciences / I.F. Petrov. M., 1999-205 p.
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222. V. Materials of judicial practice
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225. About practice of application by courts of the legislation on responsibility
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In order to live, each person must at least to a minimum extent satisfy his material and spiritual needs - in food, clothing, housing, education, which would enable him to adapt to the current conditions of production and exchange, medical care, mastering the achievements of culture, etc. Members of society satisfy the main of these needs at the expense of that share of the social product that comes into their ownership and which they own, use and dispose of at their own discretion and in their own interests, eliminating all other persons from interfering in the sphere of economic activity assigned to them as owners. dominion over their property.
In the pre-perestroika period, the principle of distribution according to work was proclaimed as the basic principle of society, and the right to work was enshrined among the most important socio-economic rights of citizens. The exploitation of man by man was forbidden, and socialist forms of ownership of the means of production reigned supreme.
The main source of citizens' property, which was called personal, was the application of their labor to the socialized means of production. From the total social product, citizens, on the basis of the principle of distribution according to work, were allocated a certain share of this product into their personal property, due to which their needs were mainly satisfied.
In addition to this, one of the most important sources replenishment of personal property were payments from public consumption funds in the form of allowances, pensions, scholarships.
Satisfaction of the needs of citizens was also ensured through free medical care, low housing costs, utilities, transport, information and other services, maintaining socially affordable prices for basic foodstuffs, clothes, medicines, etc.
The current Constitution of the Republic of Kazakhstan does not enshrine either the right to work or the principle of distribution according to work, which reflects the realities in which our society operates. At the same time, it is proclaimed that everyone has the right to free use their abilities and property for entrepreneurial and other economic activities not prohibited by law. Creative freedom is guaranteed.
Accordingly, both the sources of formation of the property of citizens, which is now called private, and the forms of its manifestation have undergone significant changes.
The main sources of the formation of citizens' property are now their labor as hired workers, and their own economic activity. From the latter, in turn, entrepreneurial activity stands out, i.e. independent activity, carried out at one's own risk and peril, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law. Entrepreneurial activity can be carried out both without the use and with the use of hired labor.
With that said, private property It now appears in the following forms: the property of citizens, the source of formation of which is their labor as hired workers, regardless of in what sphere of economy and culture and to whose means of production this labor is applied; property, the source of formation of which is its own economic activity, not aimed at making a profit; property, which is formed at the expense of entrepreneurial activity based on one's own labor; property, which is formed at the expense of entrepreneurial activity based on the involvement of hired labor.
Property and the right to property are among the phenomena that essentially constitute the core of the economic and political system of society. As you know, all the processes taking place in society to reform the economy, and in the event of disagreements between classes, social groups on the distribution and appropriation of material goods, then the change of milestones, i.e. economic and political upheavals, upheavals, one way or another, are associated with such a fundamental concept as property.
Manifestations of the concept of property followed from such definitions as:
- Property is a historically defined way of appropriation by people of objects of productive and unproductive consumption. Property is always associated with a thing (an object of appropriation), but it is not the thing itself, but the relationship between people about the thing.
- Property is the basis of production relations, expressing a historically defined form of appropriation of the means of production. It covers production, distribution, exchange and consumption.
Analyzing such definitions of property, we can conclude that property, as follows from most of them, is the relation of an individual to a thing.
When studying such a phenomenon as property, it is impossible not to notice that this is not only the prerogative of legal science. Issues relating to the concept of property are widely reflected in the economic, philosophical, sociological and political science literature. However, the study of property as an object of study of legal science is aimed primarily at revealing the concept of property rights, i.e. legal relationship ownership here stands out as a central point.
Ownership is a necessary prerequisite for any production. It is inherent in any society, any socio-economic formation, it was also under the primitive communal system and will, it should be assumed, always exist.
As for the right to property, it arises later than property as an economic category, i.e. property precedes the right of property and is connected with the need to protect property.
The right of ownership, regulating social relations, fixes in its norms the possession of material goods (objects, property), their belonging to specific owners, and also provides for the conditions and procedure for acquiring property in ownership, the ability to own, use and dispose of it in relation to a particular public economic formation. For these purposes, a special apparatus is being created, aimed at protecting, observing property rights. In this regard, property and ownership, although interrelated categories, are at the same time different orders. In contrast to the economic relations of ownership, the right of ownership is characterized as a certain system of legal norms established by the state in order to regulate the economic relations of ownership, i.e. the ownership (appropriation) of material goods is fixed not economically, but with the help of the rule of law. In this understanding, the right of ownership is indefinite.
Thus, the foregoing shows that the right of ownership establishes the belonging or impossibility of such belonging of material goods (property) to an individual, collective, classes with the help of relevant legal norms. With the help of legal norms, the owner's powers for economic dominance over this thing are established, as well as legal ways to protect the owners of material goods. And this is primarily aimed at civil law norms.
The concept of ownership has two meanings:
- the right to property in an objective sense;
- Ownership in the subjective sense.
The right of ownership in an objective sense is a set of legal norms that fix and protect, in accordance with the structure of society, relations on the ownership, use and disposal of the means and products of production either in the interests of the state (state property) or in the interests of a citizen (private property).
The totality of legal norms refers to civil law, criminal law, administrative law and norms of other branches of law.
It follows from the concept of property rights in an objective sense that the norms of property rights do not regulate all property relations in general, but only those that establish the ownership of this or that property by certain persons. Having established ownership, the right of ownership fixes in its norms the possession of material objects, as well as the possibility of using and disposing of them, i.e. the powers of the owner to own, use and dispose of property. Further, having established ownership and secured the powers of the owner, the rules of property law provide for legal means of protecting the rights of the owner to the goods belonging to him.
The right of ownership regulates relations between owners and other persons in the process of possession, use and disposal of means and products of production, including means of consumption.
The right of ownership in the subjective sense means the possibility of an individual or a collective, at its own discretion and independently of anyone, to own, use and dispose of property within the limits established by law.
The subjective right of ownership provides the owner with the opportunity, at his own discretion, to use the property for various purposes not prohibited by law, to perform any actions in relation to his own property that do not contradict the law. A person who owns property by the right of ownership is also entitled to transfer these powers to other persons (for example, on its possession and use by concluding a lease agreement), alienate (for example, sell, donate, bequeath), encumber this property with debts (for example, use it as a collateral).
Thus, if the right of ownership in the objective sense is considered as a set of legal norms that fix and protect relations on the ownership, use and disposal of the means and products of production in general, then the right of ownership in the subjective sense always belongs to a certain person (persons) and refers to a specific property, which, in essence, determines their difference from each other.
The emergence of a subjective right of ownership in a person (persons) occurs only due to certain legal facts(for example, by buying and selling, donating, accepting an inheritance, creating a new thing, prescription of property).
The subjective right of ownership is one of the absolute rights, and all other persons must not violate this right. This means that anyone who, for example, without the will of the owner takes possession of his property, must return this property. In the event that damage is caused to this property, then its owner must also be compensated for the losses.
The content of the right of ownership consists of three powers: possession, use and disposal. These three powers are mandatory, i.e. each of them is a necessary element in the right of ownership. A feature of these powers is that they arise for the subject from the very beginning of acquiring the right of ownership (for example, by purchasing some thing) and end with the loss of it (for example, as a result of the sale of this thing).
Each of the indicated powers is not only a necessary element of the right of ownership, but also has a certain specificity and a certain independence.
Possession is the actual presence of a thing in the household of a person, possession of it, which makes it possible to exert physical or economic influence on it. This does not require that the thing was directly or permanently with the owner. For example, while on vacation (on vacation, on a business trip) away from the thing, the owner continues to be its owner. In other words, as a rule, the owner is the one in whose household the thing is located. However, the right of ownership may also belong to a non-owner, in particular, on the basis of an agreement. So, the owner often transfers property to another person, concluding agreements with him for storage, pledge, and others.
Possession that is not based on a law, an agreement with the owner or an administrative act is recognized as illegal. In the same time illegal owner is recognized as conscientious if, when acquiring property, he did not know and could not know that the person from whom he acquired the property owns it illegally, and, therefore, does not have the right to alienate it.
Use is the ability to extract useful properties from a thing in order to satisfy various needs, including receiving fruits and incomes in the process of using this thing. The use is based on the law and protected by it.
The right to use, i.e. the content of its content depends on who is the owner of the thing (property): a citizen or an organization. Thus, citizens exercise the right of use by consuming food, wearing clothes, using household items, etc. Enterprises exercise the right to use through the economic exploitation of property, derive income from this property. Of course, all this is carried out within the limits provided by law.
An order is an opportunity to determine the legal fate of a thing. The right of disposal means that the owner is granted the right to take actions that determine the removal of the owner of things from the economic sphere (for example, the owner can transfer the thing to another person for temporary use or ownership by rent-donation, exchange, purchase and sale, make it a pledge, as well as destroy this thing, etc.).
The specific exercise of the authority of the order depends on who is its bearer: citizens, organizations (commercial and non-commercial), the state.
The legislator specifically noted the right of the owner to use property for any economic activity not prohibited by law, meaning the recognition of any, primarily collective or individual owner, a special subjective right (authority) for their own economic activity.
Restrictions on property rights may be introduced only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others. Restrictions may relate to the actions of the owner, arising from fire, sanitary, veterinary and other rules. Restrictions on property rights also include the removal, in whole or in part, of individual objects from civil circulation(for example, land, subsoil, weapons, etc.).
Summing up some of the above, we can conclude that property relations are the relations of people regarding the appropriation and consumption of material goods, that is, relations regarding the possession, use and disposal of these goods. The right of one person to possess appropriate material values should not be violated by other members of society, in other words, the right of one person is opposed by the duty of all others to respect this right. This natural right (according to foreign authors) is enshrined by the state in law. The legislation simultaneously provides for a system of legal measures to ensure this right. Among these measures, a special place is occupied by criminal law measures.
Recognizing as criminal gross violations of the right to own, use and dispose of material goods, establishing specific types of punishment, criminal law thereby ensures the protection of property relations. Encroachments on these relations represent specific crimes against property.
Thus, the object of all these crimes are precisely property relations, protected by the entire system of national law of the Republic. They act as a specific object of all crimes against property.
Civil legislation (Article 191-192 of the Civil Code) distinguishes two forms of ownership: public and private. State property acts in the form of republican and communal property. The subjects of the right of private property are individuals and non-state legal entities. Based on this, the direct object of the group of crimes under consideration can be either state or private property. Forms of ownership are equal, and the rights of all owners are equally protected by the norms of both criminal and other branches of law.
Crimes against property are united not only by a specific object, but also by a specific object of encroachment - property, the characteristics of which are devoted to the next subsection of the thesis.
Depending on the method of encroachment, motive and purpose, crimes against property are divided into three groups:
- - theft of property: theft (Article 175 of the Criminal Code of the Republic of Kazakhstan - hereinafter referred to as the Criminal Code); robbery (Article 178 of the Criminal Code); robbery (Article 179 of the Criminal Code); extortion (Article 181 of the Criminal Code); fraud (Article 177 of the Criminal Code); theft of items of special value (Article 180 of the Criminal Code); misappropriation or embezzlement (Article 176 of the Criminal Code).
- - mercenary crimes against property that are not related to the seizure of property: the acquisition or sale of property knowingly obtained by criminal means (Article 188 of the Criminal Code); infliction of property damage by deceit or breach of trust (Article 182 of the Criminal Code);
- - non-mercenary crimes against property: unlawful possession of a car or other vehicle without it (Article 185 of the Criminal Code); intentional destruction or damage to property (Article 187 of the Criminal Code); destruction or damage to property through negligence (Article 188 of the Criminal Code).
JUSTICE AND JUDICIAL PRACTICE
Justice as an object of criminal law protection
MAKSIMOV Sergey Vladimirovich,
Associate Professor, Department of Criminal Law and Criminology, Ulyanovsk State University, Candidate legal sciences
The starting point for the characterization of criminal encroachments, which allows assessing their socio-political essence, is traditionally the object of criminal law protection. The attitude of the legislator to certain social relations is historically changeable, it can be traced along the hierarchy of values protected by criminal law.
Justice as an object of criminal law protection is a complex phenomenon that does not have a material form, but objectively exists within the framework of social relations mediated by the rule of law. Criminal influence on him can be rendered in different ways. The most dangerous should be considered the one in which, along with the interests of justice, damage is done to other objects of criminal law protection, in particular, to the interests of the individual. Such crimes are called two-object.
The definition of the object of crimes against justice involves the clarification of the essence, although interconnected, but different in content, concepts: the judiciary, legal proceedings, justice. They are the initial basis for establishing the range of social relations protected by criminal law1.
1 See: DvoryanskovI. V., Druzin A. I., Kurbanov M. M., Chuchaev A. I. Justice as
The concept of "judicial power" is broader than the concept of "justice", since it includes other actions that are not related to justice (judicial control over operational-search activities, preliminary investigation and etc.).
Crimes against justice in all cases encroach on the judiciary. The interests of the latter act as a generic object of this type of crime, because the judiciary is one of the branches state power, which is provided by criminal law protection (Section X of the Criminal Code of the Russian Federation). As N.V. Vitruk notes, “the judiciary, not replacing the legislative and executive bodies of state power, is an effective element in the mechanism of checks and balances, resolving conflicts between them and other subjects of public relations on the basis of the constitution and the law”2.
The correct establishment of the specific object of crimes against justice is of great importance for distinguishing crimes against justice from other crimes that also infringe on state power, in particular crimes against interests public service, service in local governments and crimes against the order of government3.
object of criminal law protection (problems of legislative regulation, theory and practice). Makhachkala, 2003, p. 8.
2 Vitruk N.V. constitutional justice. Judicial constitutional law and process. M., 1998. S. 11.
3 See: Crimes against justice / ed. A. V. Galakhova. M., 2005. S. 37.
Justice is the main, but not the only function of the judiciary, carried out by its bodies - courts, judges, endowed with appropriate powers in the manner established by the Constitution of the Russian Federation and Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On judicial system Russian Federation". The essence of justice is the consideration of legal conflicts within the competence of the courts and the adoption of decisions that are of universally binding significance and are subject to necessary cases execution with the use of state coercion4.
The concept of "judicature (trial)" is also broader than the concept of "justice", since it covers not only the activities of the courts to consider and resolve cases referred to their jurisdiction, but also the actions of other entities that exercise their rights and obligations, enter into procedural relations with court, bodies of inquiry, preliminary investigation and prosecutor's office. In addition, legal proceedings are a way of administering justice and, therefore, cannot be considered as an independent object of criminal law protection.
V. A. Telegina correctly points out that the social and legal value of justice lies in the fact that, on the one hand, it is a means of achieving law, order and justice, acts as a reliable mechanism for protecting society as a whole and each person individually from violation of rights and administrative arbitrariness, and on the other hand, it protects the state from actions that threaten its unity, integrity and security5.
4 See: Russian legal encyclopedia. M., 1999. S. 762.
5 See: Telegina V.A. Justice as a social
legal value (questions of theory):
dis. ... cand. legal Sciences. Saratov, 2006. P. 9.
Justice has always been endowed with high authority and considered by society as a special function of power, carried out by persons whose justice should not be in doubt. The highest purpose of justice is emphasized in Art. 18 of the Constitution of the Russian Federation, which states that the rights and freedoms of man and citizen are directly applicable, determine the meaning, content and application of laws, the activities of the legislative and executive power, local self-government and are provided with justice.
Thus, justice is aimed at the comprehensive provision of a wide range of social relations, but at the same time it itself needs criminal law protection.
We agree with I. V. Dvoryanskov that justice, of course, cannot be considered as a self-sufficient value, but it is necessary to proceed from its institutional and functional ability to resolve social conflicts, to be a true guarantor of stability and legality. The same message underlies the creation of criminal legal protection mechanisms in order to maintain exactly the state and quality of the work of the judiciary, which would meet social expectations6.
Based on what is stated in Art. 2 of the Criminal Code of the Russian Federation of the triad of values (“personality-society-state”), justice is considered by the legislator as a kind of state activity, and crimes against justice - as an encroachment on state power.
The Criminal Code of the Russian Federation contains a large number of provisions aimed at protecting
6 See: Dvoryanskov I.V. On the issue of the adequacy of the criminal law protection of justice // Criminal law: development strategy in the XXI century: mater. V international scientific-practical. conf. January 24-25, 2008 M., 2008. S. 415.
interests of justice. Most of them are grouped in Chap. 31 of the Criminal Code of the Russian Federation, where justice is the main direct object. In other chapters of the Criminal Code of the Russian Federation, justice is an additional or optional direct object, i.e. it is protected on a par with other public relations that act as the main direct object (for example, in Art. 157, part 2 of Art. 169 of the Criminal Code of the Russian Federation, etc. ).
A number of criminal laws foreign countries also separates encroachments against justice. So, in the Criminal Code of the Republic of Poland there is Ch. 30 "Crimes against justice", in the Criminal Code of Switzerland - sec. 17 "Crimes and misdemeanors against justice", in the Criminal Code of Spain - sec. 20 "Crimes against the judiciary", in the Criminal Code of Austria - sec. 21 "Criminal acts against justice".
As an independent specific or generic object of criminal law protection, justice and the countries of the former USSR are distinguished in their criminal codes.
The criminal-legal protection of justice is carried out by criminalizing, firstly, cases of a significant deviation of the subject from his procedural functions or failure to fulfill obligations related to the implementation of procedural acts, and, secondly, cases of obstruction of the implementation of such functions and duties, including in the form coercion (coercion) of such carriers to behavior that interferes with the solution of the tasks of justice7.
Thus, it is possible to influence justice as an object of criminal law protection both from the inside and from the outside. In the first case, an encroachment on an object is carried out by the participant of a legally protected public relation.
7 See: Lobanova L.V. Crimes against justice. General characteristics and classification. Volgograd, 2004, p. 17.
a decision that does not perform or improperly performs the duties assigned to it. Such harm is typical for crimes with special subject. In the second case, harm is caused by a person who is not the subject of the violated social relationship.
In the science of criminal law, a controversial opinion has been expressed that the object of criminal law protection should be considered not justice as such, but its interests8. According to V. Ya. Tatsiy, “the need to use interest to determine the object of a particular crime does not arise in all cases, but only when the legislator defines those social relations as an object that are by their nature hidden from direct perception ... When we If we point to interest as the object of the corresponding crime, then at the same time we also mean those “invisible” social relations placed under the protection of the criminal law that stand behind the corresponding interest”9.
It seems that, as such, the interests of justice do not exist. Encroachments on them are essentially acts against justice, more precisely, against the values that underlie the latter. Thus, the term "interests of justice" follows
8 For more on this, see: Amirov K. F., Sidorov B. V., Kharisov K. N. Responsibility for criminal interference in the activities of persons exercising justice and criminal prosecution. Kazan, 2003; Fedorov A. V. Crimes against justice (questions of history, concepts and classification). Kaluga, 2004, p. 82; Musaev M. M. Encroachment on the life of a person exercising justice or preliminary investigation (criminal law and criminological characteristic): dis. ... cand. legal Sciences. Makhachkala, 2006, p. 11.
9 Tatsiy V. Ya. Object and subject of crime
leniya in the Soviet criminal law. Har-
kov, 1988, p. 77.
cannot be recognized as methodologically unfounded.
Despite the fact that legislation, including criminal law, uses the term "justice", its content is revealed only in the legal doctrine. At the same time, the criminal law understanding of justice differs significantly from the importance given to it in the procedural branches of law10.
The phrase "crimes against justice" was first legislated in ch. 8 of the Criminal Code of the RSFSR in 1960 and later accepted by Ch. 31 of the current Criminal Code of the Russian Federation of 1996
One should agree with Yu. I. Kuleshov that “although the use of the term “justice” in criminal law and the theory of criminal law does not correspond to its literal interpretation, arising from the provisions of the Constitution of the Russian Federation, since it expands the content of this concept, however, this term, as no other defines that specific area of state activity that is subject to independent criminal law protection, and therefore its use in this interpretation seems justified”11.
Inexpediency in clarifying the name of Ch. 31 of the Criminal Code of the Russian Federation also sees L.V. Lobanov. Firstly, it is hardly possible to pick up such a concise name. Secondly, neither the production of a preliminary investigation nor the execution of procedural decisions takes place in their own name. Such activity is the provision of justice. Therefore, the interests of the latter are harmed or a threat of infliction of encroachment is created -
10 See about this: Yu. I. Kuleshov. Crimes against justice: problems of theory, lawmaking and law enforcement: author. dis. ... Dr. jurid. Sciences. Vladivostok, 2007, p. 17.
11 Kuleshov Yu. I. Justice as an object of criminal law protection: history and modernity // Jurisprudence. 1999. No. 4. S. 82.
mi committed in the area under consideration12.
Justice should be understood in a narrow and broad sense. In the narrow sense, it represents exclusively judicial activity; broadly, it includes other types of jurisdictional activities directly related to the work of the courts. Among the last in ch. 31 of the Criminal Code of the Russian Federation names the activities of the prosecutor, investigator, person conducting the inquiry, defense counsel, expert, specialist, bailiff. By your work said persons“provide justice, their activities, like judicial ones, are carried out in a certain procedural form”13.
The need for understanding in criminal law of justice in a broad sense is due to the fact that both the very activity of administering justice and the related procedural activities of other bodies and persons require for their proper implementation special conditions. These types of activities take place in the sphere of social life, which is characterized by an increased level of conflict of interest, and to the greatest extent this applies to criminal proceedings. Hence the need for enhanced criminal law protection of life, health and personal safety of all persons involved in this activity. This also determines the emergence of norms directly aimed at protecting such values as the authority of the judiciary, the honor and dignity of persons called upon to assist the court, the independence of the judiciary, procedural
12 See: Lobanova L.V. Crimes against justice: problems of classification of encroachments, regulation and differentiation of responsibility: dis. ... Dr. jurid. Sciences. Kazan, 2000, p. 46.
13 Course of criminal law. Special part.
T. 5 / ed. G. I. Borzenkova, V. S. Komis-
sarov. M., 2002. S. 145.
independence of the bodies conducting the preliminary investigation, the secrecy of the preliminary investigation14.
A. V. Fedorov believes that the concept of two meanings of the concepts of justice is methodologically erroneous, since in fact the legislator unites in Ch. 31 of the Criminal Code of the Russian Federation there are two groups of crimes: 1) crimes against the activities of the court in the administration of justice; 2) crimes against the activities of bodies of preliminary investigation and prosecutor's office, bodies and institutions executing judicial acts 15. However, among the subjects subject to criminal law protection, the author does not name a defender, an expert, a specialist who also promote justice, although not from the standpoint of the state interest.
More reasonable is the position of S. E. Aslikyan, who divides the crimes provided for by Ch. 31 of the Criminal Code of the Russian Federation, into two groups: those who infringe on justice either directly (obstruct the activities of the court in the administration of justice) or indirectly (disrupt the normal auxiliary work of bodies assisting the court in the administration of justice)16.
The last group of crimes is encroachment not only on the activities government agencies(bodies of preliminary investigation, inquiry, prosecutor's office, bailiffs), but also on the activities of defense lawyers (lawyers, representatives of victims, civil plaintiffs and civil defendants and other individuals). This conclusion follows from the constitutional
14 See: Gorelik A.S., Lobanova L.V. Crimes against justice. SPb., 2005. S. 30.
15 See: Fedorov A.V. Decree. op. S. 80.
16 See: Aslikyan S. E. Criminal-legal support for the implementation of constitutional principles administration of justice: dis. ... cand. legal Sciences. M., 2003. S. 10.
the competitive principle of competitiveness, characteristic of all procedural branches of law.
Given the heterogeneity of social relations protected by Ch. 31 of the Criminal Code of the Russian Federation, reasonable proposals are made in the science of criminal law to replace its name with “Crimes in the field of legal proceedings”17, “Crimes against the judiciary and the procedural activities of bodies of preliminary investigation and bodies called upon to execute sentences and other judicial acts”18, etc.
According to part 3 of Art. 123 of the Constitution of the Russian Federation, legal proceedings are carried out on the basis of competitiveness and equality of the parties. However, the Criminal Code of the Russian Federation does not fully ensure the implementation of this principle, therefore, the specified constitutional norm partly has a declarative content. The prosecution has much more rights than the defense, and this indicates that the accusatory bias, characteristic of the Soviet era, has not yet been eliminated. As V. G. Bespalko correctly notes in this regard, “although the judiciary is still one of the branches of state power, the primary service of state interests is not its purpose at all”19.
17 For more details, see: Kuleshov Yu. I. Crimes against justice: problems of theory, lawmaking and law enforcement. S. 11; Kalashnikova A. A. Legal proceedings as an object of criminal law protection // Trudy juridical. Faculty of SevKavGTU: Sat. scientific tr. Issue. 2. Stavropol. 2004, p. 118.
18 See: Spektor L. A., Vanurkina A. A. Judicial power as an object of criminal law protection // International Journal of Experimental Education. 2010. No. 8. S. 172-173.
19 Bespalko V. G. Modern justice as an element legal culture and the object of criminal law protection // Russian justice. 2008. No. 3. S. 37.
In particular, Art. 294 of the Criminal Code of the Russian Federation provides for liability for interference in the activities of the court (part 1) or in the activities of the prosecutor, investigator or person conducting the inquiry (part 2). However, similar actions committed against a defense lawyer are not criminalized. In our opinion, this is a significant shortcoming of the criminal law. Article 18 of the Federal Law of May 31, 2002 No. 63-FZ “On Advocacy and the Bar” contains a ban on interference in advocacy carried out in accordance with the law, or obstruction of this activity in any way. At the same time, there is no mechanism for the criminal law provision of this guarantee of the lawyer's independence.
In view of the foregoing, it is proposed to supplement Art. 294 of the Criminal Code of the Russian Federation with a new part as follows: “21. Interference in any form in the activities of the defense counsel in order to prevent a comprehensive, complete and objective investigation of the case - ...”.
For comparison, let's say that Art. 365 of the Criminal Code of the Republic of Kazakhstan specifically provides for criminal liability for obstructing the legal activities of lawyers and other persons to protect citizens and provide them with legal assistance.
In accordance with Art. 118 of the Constitution of the Russian Federation, justice in the Russian Federation is carried out only by the court. At the same time, four types of legal proceedings are distinguished (constitutional, civil, administrative and criminal), which are equally subject to protection by criminal legal means. Accordingly, justice, depending on the nature of the cases under consideration, is: constitutional, civil, administrative and criminal. The criterion for dividing justice into types is the specificity of the affected social relations and the range of issues to be resolved
courts in the administration of justice. At the same time, justice as a whole is an object of criminal law protection, regardless of which court and in which case it is carried out.
Since in civil, administrative and criminal cases there is a stage of execution of judicial acts, and criminal law-judge20, with the exception of cases of private prosecution, also presupposes pre-trial stages(initiation of a criminal case and preliminary investigation), constitutional justice can be considered only in a narrow sense, and the rest - both in a narrow and in a broad sense.
We disagree with L. V. Inogamova-Khegay, who understands justice as one of the forms of state activity, which consists in the consideration and resolution of cases by courts of general jurisdiction, as well as arbitration courts in civil, criminal, administrative and arbitration proceedings21. T. E. Abova’s arguments also raise objections that a positive answer to the question of the presence in the Constitution of the Russian Federation of arbitration proceedings, through which arbitration courts exercise judicial power, can be given as a result of the interpretation of the Constitution of the Russian Federation22. The term "arbitration proceedings" as an independent method of administration of justice is not provided for by the Constitution of the Russian Federation, therefore its use is incorrect and confuses the terminology.
Constitutional justice is an activity
20 The term “criminal justice” is not common in Russian legal doctrine. Instead, as a rule, the phrase "justice in criminal cases" is used.
21 See: Crimes against justice / ed. A. V. Galakhova. S. 22.
22 See: Judiciary / ed. I. L. Petrukhina. M., 2003. S. 684-685.
of the Constitutional Court of the Russian Federation on checking the constitutionality of normative legal acts, resolving disputes about the competence of government bodies, interpreting the Constitution of the Russian Federation and giving an opinion on compliance with the procedure for accusing the President of the Russian Federation of treason or committing another serious crime, as well as the activities of constitutional (charter) courts of constituent entities of the Russian Federation on consideration of the issues of compliance of the laws of the constituent entity of the Russian Federation, regulatory legal acts of state authorities of the constituent entity of the Russian Federation, local self-government bodies of the constituent entity of the Russian Federation with the constitution (charter) of the constituent entity of the Russian Federation, according to the interpretation of the constitution (charter) of the constituent entity of the Russian Federation.
There is still no consensus on the issue of whether justice is carried out within the framework of constitutional proceedings. So, O. V. Brezhnev refers the judicial constitutional control to a special type of jurisdictional activity, which is implemented in the system of constitutional and legal relations, in order to protect the most important social values, clothed in the form of constitutional and legal categories, and resolve possible contradictions between them23.
N.V. Vitruk argues that constitutional justice is the highest form of constitutional control, a synthesis, a fusion of two principles - the essence of constitutional control and the form of justice, as a result of which we are dealing with an independent type of state power control activities in a specialized form of constitutional justice24.
23 See: Brezhnev O. V. Judicial constitutional control in Russia: problems of methodology, theory and practice: dis. ... Dr. jurid. Sciences. M., 2006. S. 12.
24 See: Vitruk N.V. Decree. op. S. 30.
regulation (statutory) courts of the constituent entities of the Russian Federation to justice. A different understanding, even taking into account the specifics of constitutional justice, leads to a violation of the systematic nature of the activities of the courts in the Russian Federation. In particular, we agree with Yu. I. Kuleshov that the relations arising in the field of activity of constitutional courts in Russia are covered by the criminal law concept of “justice” and are included in the object of crimes against justice within the framework of Ch. 31 of the Criminal Code of the Russian Federation25.
Recognition of constitutional control as a species autonomous from justice judicial activity will artificially entail the impossibility of its criminal-legal support within the framework of Ch. 31 of the Criminal Code of the Russian Federation, which is unacceptable. In this case, this chapter should be renamed "Crimes against justice and constitutional control."
In addition, the legislator, using the term "constitutional justice" in Art. 115 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation", unequivocally disclosed the content of the activities of this judicial body.
Civil justice is an activity federal courts general jurisdiction, federal arbitration courts and justices of the peace to resolve disputes arising from civil, land, labor and other legal relations. To the number judiciary administering justice, also applies to the Disciplinary Judicial Presence.
Administrative justice consists in the activities of federal courts of general jurisdiction, federal arbitration courts and justices of the peace to consider
25 See: Yu. I. Kuleshov. Justice as an object of criminal law protection: history and modernity. S. 86.
cases of administrative offenses, the responsibility for which is provided for by the Code of Administrative Offenses of the Russian Federation and the laws of the constituent entities of the Russian Federation that establish administrative responsibility.
criminal justice is an orderly Code of Criminal Procedure of the Russian Federation activities of federal courts of general jurisdiction and justices of the peace to consider criminal cases.
Thus, justice is an independent object of criminal law protection. It should be understood as the law-ordered activity of the courts in considering constitutional, civil, administrative and criminal cases, as well as the agencies of inquiry, preliminary investigation, the prosecutor's office, the bodies executing judicial acts, and the bar that facilitate this activity.
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