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The question of the types of such circumstances remains controversial in the science of criminal law. For example, A.A. Piontkovsky and N.G. Kadnikov, such circumstances include not only those specified in the criminal law, but also others determined by other branches of law. According to other researchers, this list should be limited by the norms of the criminal law.
In the criminal law literature, other circumstances that are not contained in the Criminal Code of Russia include: the consent of the victim, the exercise of his right, as well as the performance of professional functions and duties.
Victim's consent. Causing harm to protected interests is not considered a crime if it is committed with the consent of the victim, who has this interest at his or her free disposal. Theory and judicial practice have developed the conditions for the legality of causing harm with the consent of the victim.
1. Consent to harm is given in relation to such benefits and interests that are at his free disposal and the range of which is rather limited: these are mainly property rights, that is, powers over specific property. The main condition is that the act does not cover causing harm to the protected interests of third parties (for example, the destruction of property with the consent of the victim in a generally dangerous way - by arson).
2. Consent must be given within the scope of the powers that give the person the right to freely dispose of his rights and interests, that is, consent to harm the most valuable personal rights and interests of the subject does not eliminate the criminality of the act. There are special provisions in the criminal law that provide for liability for causing harm to the victim even in the event that he has expressed his consent to this (illegal abortion (Article 123 of the Criminal Code); sexual intercourse and other actions of a sexual nature with a person under 16 -years old (Art. 134 of the Criminal Code); deliberate infliction of grievous bodily harm (Art. 111 of the Criminal Code). In situations of deprivation of life with the consent of the victim (euthanasia), this is regarded as premeditated murder, but is taken into account as a circumstance mitigating punishment (cl. »Part 1 of Art. 61 of the Criminal Code of the Russian Federation).
History knows a different solution to the issue: the first edition of the RSFSR Criminal Code in 1922 provided that the deprivation of a person's life, committed out of compassion and at the insistent request of the murdered, is recognized as inaccessible (this rule was soon canceled). Russian pre-revolutionary criminal legislation also did not equate premeditated murder with murder by consent. The Code of 1903 enshrined a provision on reduced liability for a murder "committed at the insistence of the murdered person and out of compassion for him."
3. Consent must be the result of one's own will... The subject who has expressed consent must be sane, having reached the age from which legal capacity comes. Consent is given voluntarily, not forced (under the influence of deception or duress). The form of expressing consent does not matter much, the consent of the tacit, verbal or declared conclusive actions (gestures) is quite enough.
4. In time, consent must precede harm.: consent is to be distinguished from forgiveness, which is possible immediately after harm has been done. Consent, taken back, loses its force, but only before the act was committed (if a person, bound at his request, demands release, then further holding him in this state is illegal);
Exercise of your right... Causing harm in the exercise of one's private rights is not recognized as criminal if the limits of powers established by law are not violated.
There are a number of conditions for the legality of the exercise of your right, it must:
to be valid , that is, belong to a person on the basis of any rule of law;
to be carried out within the limits determined by law ;
to be carried out in the forms permitted by law ;
exercise of the right must not cause significant harm to protected interests or be cruel .
When a person violates the procedure for exercising his legal rights or realizes them in forms that contradict the law, as well as when a person exercises an alleged right that in reality does not belong to him, criminal liability for arbitrariness may occur (Article 330 of the Criminal Code of the Russian Federation).
Performance of professional functions and duties. If professional functions are performed in accordance with certain conditions (conditions of legality of carrying out activities), then their criminality is excluded. There are several such conditions:
This professional activity is permitted by law, and the fulfillment of duties is based on the norms of law;
The activity is carried out strictly within the limits and in accordance with the goals determined by the law;
Actions are performed by means and methods specified in the relevant regulatory act.
Compliance with the listed conditions determines the proper performance of professional functions and duties, which gives the right to recognize the possible harm associated with them as impregnable. For example, an athlete in a sports duel injures an opponent.
If harm is caused due to improper performance of functions and duties, the guilty person may be held criminally liable (such cases are specifically indicated in Articles 124, 143, 215, 219, 225, 236, 247, 248, 249, 251, 293 of the Criminal Code of the Russian Federation ). The Criminal Code provides for liability for the illegal implementation of specific types of professional activity: illegal abortion (Article 123 of the Criminal Code of the Russian Federation), illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation), illegal banking (Article 172 of the Criminal Code of the Russian Federation).
It should be noted that the improper performance of professional functions and duties is committed with a reckless guilt , and the illegal performance of such activities presupposes only willful guilt.
The named circumstances, excluding the criminality of the act, fully correspond to the legal nature of similar circumstances included in Ch. 8 of the Criminal Code of Russia. According to N.G. Kadnikov, it is advisable to include them in the Criminal Code in order to reflect the entire system of such circumstances that are outwardly similar to the signs of acts provided for by the Special Part of the Criminal Code of Russia, but are committed to protect lawful interests or achieve socially useful goals.
Topic 14. CONCEPT AND PURPOSE OF PUNISHMENT
1. The concept of punishment and its features.
2. The ratio of the concepts of criminal punishment and criminal
responsibility.
3. Correlation of criminal punishment with other measures of state coercion.
4. Purposes of punishment and their effectiveness.
Novoseltseva Maria Dmitrievna, First year Master's student, Institute of Law, Bashkir State University, Ufa [email protected]
Some aspects of the victim's consent to harm
in criminal law
Abstract: The article is devoted to the consent of the victim to harm in criminal law. According to the author, in the current criminal law, the circumstance in question has not been properly consolidated. The article analyzes the points of view on the criminal law value of the victim's consent to harm, expressed by well-known Russian jurists. Key words: victim's consent, harm, social danger.
The victim's consent to harm is a form of manifestation of the victim's private will, some of its aspects are taken into account in the criminal law. However, the issue under consideration has not received sufficient normative regulation in modern criminal legislation. Currently, in the educational literature, the criminal nature and significance of the victim's consent to harm as a circumstance precluding the criminality of an act is, as a rule, denied. This approach is justified by the absence of this circumstance in the system of circumstances precluding the criminality of the act provided for by the criminal law. In the science of criminal law, there is no consensus regarding the criminal law value of the victim's consent to harm. “The heightened interest of the science of criminal law to the problem of the victim's consent is largely due to the fact that, without having received a definite assessment in the criminal law, in practice it is often perceived as a circumstance precluding the criminality of an act. Meanwhile, in Russian criminal law, liability can only be excluded by those circumstances that are directly provided for by the criminal law. To give the victim's consent to legal force, the Criminal Code of the Russian Federation must include an appropriate norm. " The famous Russian theorist of criminal law N.S. Tagantsev wrote that the consent of the victim to harm under certain circumstances excludes criminal liability for harm caused to this person. NS. Tagantsev believed that "if the encroachment is aimed at an interest in relation to which only the person's right to own, dispose and use this interest is protected, then the refusal of such a person from the right protected by the norm will eliminate the crime of the encroachment" 2. According to N.S. Tagantsev, in order to resolve the issue of criminality of causing harm to the victim, with his consent, it is necessary to establish precisely whether the victim has the right to dispose of the benefits that have been harmed and to what extent. Considerable attention was paid to the objective side of the act, which 1Sidorenko E.L., Karabut M.A. Private principles in criminal law. SPb., 2007. S. 1072 Tagantsev N. S. Russian criminal law: lectures. SPb., 1902. T. 1. S. 400-402. Harm caused. It could be recognized as non-criminal only if the act did not create a threat of harm to the interests of persons other than the victim. For example, the owner of a house asks another person to destroy the house by arson. Such infliction of harm with the consent of the victim is criminal, because it creates a threat of harm to others, that is, to the owners of nearby houses. NS. Tagantsev admitted causing property damage to the victim with his consent, belittling his honor and dignity and causing minor harm to health. The famous theorist of criminal law considered infliction of grievous bodily harm or death criminal under any circumstances. However, the consent of the victim in inflicting grievous bodily harm or death must be taken into account when imposing punishment on the person guilty of such infliction. Tagantsev wrote: “You cannot put on a par with a murderer out of self-interest or revenge of a soldier who stabbed his mortally wounded comrade on the battlefield at his request in order to save him from further torment; a doctor who stopped the agonizing agony of a dying person, etc. "3.N.D. Sergievsky, on the contrary, believed that “encroachment on life and serious incurable bodily injury can be considered as acts subject to punishment, regardless of the consent or disagreement of the victim, since these benefits are in themselves of great value for the state” 4. A similar opinion was expressed by A. Kistyakovsky, who believed that “permission to self-harm and murder cannot eliminate the guilt of these crimes.” 5. In the science of Soviet criminal law, I.I. Slutsky was the first to classify the circumstances excluding the criminality of an act, among which he singled out the consent of the victim to cause harm6. Causing harm to the victim with his consent, according to I.I. Slutsky, is not socially useful and legitimate, however, the degree of public danger of such an act is small and in this regard it can be considered insignificant. A.A. Piontkovsky believed that “the consent of the victim“ is a circumstance that eliminates the public danger of the act in case of infringement of those rights and interests that are at the free disposal of the victim. With the consent of the victim, the actions committed cannot be recognized as socially dangerous; they should be considered lawful. ”7. Defining the victim's consent as a circumstance precluding the criminality of the act, A.A. Piontkovsky singled out the conditions for the inaccessibility of such infliction: 1) consent is possible only in relation to those benefits that are at the free disposal of the victim; 3 "Ibid" 4Sergievsky N. D. Russian criminal law. Part General: a guide to lectures. SPb., 1905. S. 22.5 Kistyakovsky A. Elementary textbook of general criminal law. Part General. Kiev: Printing house A. I. Mamontov and K, 1882. S. 335.6 Slutsky I. I. Circumstances excluding criminal liability. L., 1956. S. 11 –12.7 Piontkovsky A. A. Course of Soviet criminal law. Part General. M: Nauka, 1970. T. 2. S. 342 - 4012) consent can be given only within the limits of the free disposal of the given person with his benefits and interests. In the area of personal benefits, A.A. Piontkovsky allowed harm to health, but denied the legitimacy of causing harm to a person's life, believing that this undermines the consciousness of the inviolability of another person's life; 3) consent should not pursue unlawful and socially harmful goals; 4) consent must necessarily be valid, that is, it must be given sane and a capable person or a legal representative of such, expressed in the interests of the person represented. During the Soviet period, various opinions were expressed in science regarding the consent of the victim. So, A.I. Santalov considered the victim's consent to harm to be a circumstance precluding the criminality of the act, and defined it as "an act infringing on an interest (right) protected by law, if it is carried out with the consent of the person to whom this interest belongs and who can dispose of it at his own discretion." eight. A.I. Santalov wrote that consent can be expressed only in relation to property benefits and is unacceptable in relation to health and life. Other researchers, including N.D. Durmanov and V.D. Pakutin wrote that the consent of the victim to harm his property has nothing to do with criminal law and is a civil law phenomenon. The consent of the victim to harm health and life did not eliminate the crime of the act. M.D. Shargorodsky believed that consent to harm to health can be considered as a circumstance precluding the criminality of an act, only if bodily harm is inflicted for socially useful purposes, which include, for example, the research of drugs or the production of experimental medical operations. Later, this approach in science became generally accepted. Causing harm with the consent of the victim for reasons other than socially useful was considered criminal. In the same vein, law enforcement practice developed. The study by A. N. Krasikov, who understood by consent "the expression of the free expression of the will of a person to violate his benefits or put them in danger (risk) as a way to achieve personal interest, on the one hand, and on the other, the behavior of a third party within the framework of this consent" 9. He also highlighted the conditions under which the consent of the victim excludes the crime of causing harm: 1. the rights and interests in respect of which the victim expresses consent are at his free disposal; 2. consent refers only to personal rights and interests. Consent to harm the rights and interests of third parties is not allowed; 3. harm should not be carried out for socially harmful purposes; 4. consent must come from a sane capable person; 5. consent must be voluntary and given before the harm is caused. In modern legal science, discussion on the need to include the victim's consent to harm as a circumstance precluding the criminality of the act, the Criminal Code continues. Professor 8 Course of Soviet Criminal Law. Part General. L .: Publishing House of Leningrad State University, 1968. T. 1. P. 460 -465, 518.9 Krasikov A. N. The essence and meaning of the consent of the victim in the Soviet criminal law. Saratov: Publishing House of Saratov Unta, 1976. S. 19. S.G. Kelina believes that “the failure to include in the 1996 Criminal Code of the Russian Federation such a circumstance as the consent of the victim should be recognized as a gap in the Russian criminal law” 10. Justifying the need to take into account the consent of the victim as a circumstance precluding the criminality of the act, T.V. Kondrashkova notes that the criminal law does not recognize the destruction of one's own property, self-inflicted bodily harm and suicide as a crime. In this regard, the question arises: can it be considered a crime to harm the rights and interests of the victim, committed not by him personally, but at his request? Answering the question posed, T.V. Kondrashkova notes that such consent or request are ways of disposing of the victim's own rights, and the disposal of their legal rights, as you know, is not punishable. One of the key arguments of opponents of including the victim's consent to harm as a circumstance precluding the criminality of the act is the possibility of abuse by the person who caused the harm. This argument cannot be considered consistent, since abuse is possible in the application of any rule of law. In practice, there are cases of illegal convictions to imprisonment, but this fact is not considered as a basis for excluding imprisonment from the list of criminal punishments. Summing up the analysis of the opinions expressed in the scientific literature regarding the criminal significance of the victim's consent to harm, it seems possible to conclude that it is necessary to include the said consent in the criminal law as a circumstance precluding the criminality of the act.
References to sources 1. Sidorenko E.L., Karabut M.A. Private principles in criminal law. SPb., 2007. S. 1072. Tagantsev N.S. Russian criminal law: lectures. SPb., 1902. T. 1. S. 400 - 402.3. Sergievsky ND Russian criminal law. Part General: a guide to lectures. SPb., 1905. S. 22.4. Kistyakovsky A. Elementary textbook of general criminal law. Part General. Kiev: Printing house A. I. Mamontov and K, 1882. S. 335.5. Slutsky I. I. Circumstances excluding criminal liability. L., 1956. S. 11 –12.6. Piontkovsky A. A. Course of Soviet criminal law. Part General. M: Nauka, 1970. T. 2. S. 342 - 4017. Course of Soviet criminal law. Part General. L .: Publishing House of Leningrad State University, 1968. T. 1. S. 460 -465, 518.8. Krasikov A. N. The essence and meaning of the consent of the victim in the Soviet criminal law. Saratov: Publishing House of Saratov Unta, 1976. S. 19.9. Kelina S. G. Circumstances excluding criminality: concept and types // Criminal law. 1999. No. 3. S. 7.
10Kelina S. D. Circumstances excluding the criminality of an act: concept and types // Criminal law. 1999. No. 3. S. 7.
The German Criminal Code in § 226 a considers the consent of the victim to be injured (for example, at competitions) as a circumstance precluding the unlawfulness of the act, if generally accepted moral standards have not been violated.Efthanasia (a type of victim's consent) is the killing of a person with his consent or at his request.
In the Criminal Code of the RSFSR in 25, there was a norm dedicated to this issue, but then it was withdrawn.
The Kivarkian Case (assisted murder with a gas mask) was considered in the USA. After this case, in the state of Michigan in 1993, a law was passed banning efthanasia under the threat of imprisonment up to 4 years and a fine.
Efthanasia is of two types:
active is the commission of specific actions aimed at killing a person. Example: administering drugs.
passive - not providing help when it can be done.
Efthanasia is most legalized in Holland. Law of 1993, it lists the conditions under which deprivation of life is possible:
the patient is terminally ill and this causes him suffering;
the doctor can help if the patient asks for it more than once;
before efthanasia, the doctor should consult with colleagues about the appropriateness of the conduct;
the last word rests with the local authorities.
In this case, there is no UO, if these conditions are not met, then imprisonment is up to 12 years.
In other countries, efthanasia does not exclude UO. In Germany, England and Australia, up to 5 years in prison. In the United States, efthanasia is prohibited in some states.
Here such questions arise as:
Are abuses completely ruled out?
Why is the final decision up to the authorities?
Could doctors, in order to save money, use efthanasia unreasonably often?
Harm and even murder in sports is allowed if all the rules have been followed. When carrying out complex operations, a person must give written consent or his relatives.
1934 England. Donovan's case: he beat his 17-year-old girlfriend for sexual gratification with her consent. This does not exempt from criminal liability.
More on topic 52. Consent (request) of the victim as a circumstance precluding criminal liability .:
- 1.2. Forensic characteristics of hooliganism and circumstances to be proven in this category of criminal cases
In judicial practice, some other circumstances are taken into account as an act excluding criminality. These include: performance of professional duties; the exercise of subjective rights; victim's consent... In the Criminal Code, there is no direct reference to these circumstances as excluding criminality.
The Criminal Codes of Russia and some other CIS member states stipulate physical and mental coercion as circumstances excluding criminality. At the same time, the significance of these circumstances as an act excluding criminality is ambiguous. As for mental coercion, it, as such, does not eliminate acts in the criminal legal sense, but can create a situation of extreme necessity for a person who, under the influence of mental coercion (threat of murder), decides, for example, to hand over the keys to the safe to criminals, where valuables are stored. Physical coercion, as you know, can either completely exclude the volitional nature of a person's actions, which, as a result, lose their criminal-legal meaning, or harm by an act committed under physical coercion is assessed according to the rules of extreme necessity.
Thus, physical and mental coercion has a different nature and independently, as excluding criminality, acts cannot be considered.
Performing professional duties may be accompanied by infringement of someone's interests, which makes such behavior outwardly similar to a crime. Thus, the confiscation of property is carried out by the seizure of material values from the possession of the convicted person, which is similar to the seizure of property during theft. However, the actions of the bailiff in this case are the execution of his official duties and are based on a court verdict, which makes them not socially dangerous, but socially useful. The action of this circumstance, excluding the criminality of the act, is not limited to the sphere of activity of representatives of the authorities. It applies equally to the activities of all officials, workers and employees in the field of medicine, production, etc.
The legality of causing harm in the exercise of professional functions is presumed provided that the person acts in strict accordance with the law, bylaws, service instructions, orders and other acts regulating his powers, conditions and procedure for their implementation. The use of official rights contrary to the interests of the service, their abuse turn the performance of professional duties into a socially dangerous act. In this case, the right to the necessary defense against encroachment arises, regardless of the powers and official position of the offender.
Exercise of subjective law, or the exercise of one's right, as a circumstance precluding the criminality of an act, is the exercise by a person of the rights that are granted to him by law or other normative acts in strict accordance with these acts.
The exercisable right must be wholly owned personally to a person exercising this right. So, the owner of the property does not commit a crime by throwing this property into a landfill. If the subjective right is limited by law, then it should be carried out taking into account these restrictions (for example, self-harm cannot be considered a personal matter of a man if it is aimed at evading military service). Likewise, it is inadmissible to violate the procedure for exercising one's subjective right. For example, the exercise of the right to land bypassing the procedure established by the legislation on land is regarded as a crime - unauthorized occupation of a land plot (Article 386 of the Criminal Code).
The freedom to dispose of one's right is also limited by the inadmissibility of violating the legitimate interests of other persons. So, the destruction of one's own property should not be carried out in a way that creates a threat of damage to someone else's property (in a generally dangerous way). At the same time, the ownership of property by a person on the basis of the right of common joint or shared ownership excludes the lawfulness of its destruction, since such actions violate the ownership right of the co-owners. However, in such cases, one should clearly distinguish between civil and criminal liability.
Ignoring the rights of other persons in the exercise of their rights may entail liability under Article 383 of the Criminal Code, which calls such actions arbitrariness and defines them as the unauthorized exercise of one's actual or perceived right, committed in violation of the procedure established by a legal act and causing large-scale damage or significant damage to rights and the legitimate interests of citizens or the state and public interests.
Victim's consent to inflict certain harm on him is in fact the exercise of his subjective right. However, since the direct implementation of such a right is carried out by another person, the transfer to this person of his right gives rise to a number of additional conditions for the legality of causing harm.
1. The consent to the disposal of any right must come from a person with legal capacity and capacity.
2. The right transferred to the victim must belong to him personally without any restrictions. However, unlike the exercise of subjective rights, the consent of the victim does not excuse harm to interests, which no outsider has the right to encroach on. Thus, consent to infliction of death by euthanasia does not exempt from liability.
3. The giver must be aware of the factual and social significance of the actions he is taking, and must have the ability to direct his actions. Informed consent can be expressed orally, in writing or explicitly, but in any form it must be specific: to relate to certain values and allow certain actions to be performed with them.
4. The consent of the victim must be voluntary, i.e. express the true intentions of the person. There is no voluntariness in obtaining consent through physical or mental violence or by deception. Voluntary consent also implies an unlimited right to withdraw consent at any time before the occurrence of harm.
5. The consent of the victim must be timely, which means that it must be obtained before harm is caused. The use, for example, of someone else's property, should also be regarded as committed with timely receipt of consent, if its title owner previously gave consent to the use of the property and did not object to its use in the future (multiple use of someone else's boat or someone else's car). Reconciliation with the victim after harming him does not exclude liability, except in private prosecution cases.
6. The harm caused to the victim, in nature and size, should not exceed the limits of the victim's consent.
7. Causing harm with the consent of the victim must not infringe on the rights and legitimate interests of third parties.
If someone is mistaken about the ownership of the rights or the content of the consent obtained, then the harm is assessed according to the rules of fact. Deliberately misleading the tortfeasor regarding the ownership of the violated rights is the basis for condemning the person who has given consent as the perpetrator of the relevant crime. Malicious joint actions entail the responsibility of both the person who gave the consent and the direct perpetrator (for example, when evading military service by causing harm to health).
In the legal literature, such a circumstance as execution of the law... The actual implementation of the law is the concrete implementation of either professional functions or their subjective rights, which determines the legal assessment of harm caused in the execution of the law.
An ancient Roman rule says Volenti non fit injuria - the offense cannot be inflicted on the one who wants it. The viability of this thesis is confirmed by the positive foreign legislative experience. Thus, in the United States, the consent of the victim to inflict bodily harm was recognized as the basis for protection (the infliction of harm is considered lawful), if no serious bodily harm was inflicted and the risk was reasonably foreseen 1. The Criminal Code of India did not define as a crime the infliction of harm with the consent of the victim (for his benefit) without the intention to cause death or grievous bodily harm, as well as the commission of a harmful act in good faith for the benefit of a child or an insane guardian or with his consent. A similar position was consolidated in subsection F of chap. 9 of the US Texas Criminal Code, which justifies the use of violence, but not lethal force, against a minor under 18 years of age [by a parent or legal guardian with parental consent] and a mentally incapacitated person [guardian or person charged with general care and supervision for such incapacitated] in order to educate, maintain discipline, to ensure their safety or welfare (see Art. 9.61-9.63). The Criminal Code of Sweden attributed the victim's consent to harm to the ground for exemption from criminal liability (see Art. 24: 7). Under the Criminal Code of the Federal Republic of Germany, bodily harm to the victim is permissible with his consent, if the deed does not violate generally accepted moral standards (see § 226a). The Israeli Criminal Law Act has excluded criminal liability for an act committed against a person who has given consent in accordance with the law, during a medical practice or procedure (see Art. 34 yud gimel). Under the Argentine Criminal Code, under certain conditions, a doctor who performed an abortion with the consent of a woman is not punishable (see Art. 86). According to the Criminal Code of the Republic of San Marino, a person who: a) caused damage or threatened well-being with the legally expressed consent of a person who has the right to give such consent is not punishable (see Art. 39); b) when holding sports competitions, contributed to the occurrence of consequences associated with causing damage to an opponent or third parties (see Art. 44).
The norms containing signs of the consent of the “victim” to harm have been consolidated in modern domestic criminal legislation (see the note to Articles 122, 230, 308, 316, 322 of the Criminal Code of the Russian Federation). At the same time, the consent of the “victim” to inflicting harm permissible by law is not reflected in Russian criminal legislation as an independent legal institution, although in a sense, a semblance of consent can be discerned, for example, in the rules on exemption from criminal liability, termination of a criminal case (criminal prosecution) , refusal to initiate it: a) in connection with the reconciliation of the person who committed the criminal act and the victim (see Art. 76 of the Criminal Code of the Russian Federation, Art. 25 of the Criminal Procedure Code of the Russian Federation; earlier - Art. 9 of the Criminal Procedure Code of the RSFSR); b) in connection with the refusal of the victim to file a complaint to initiate a criminal case under Part 1 of Art. 115, part 1 of Art. 116, part 1 of Art. 128, part 1 of Art. 131, part 1 of Art. 132, part 1 of Art. 137, part 1 of Art. 138, part 1 of Art. 139, art. 145, part 1 of Art. 146, part 1 of Art. 147 and others. Of the Criminal Code of the Russian Federation (see parts 2, 3 of Art.20, Art.23 of the Code of Criminal Procedure of the Russian Federation; earlier - Art.27, 27 of the Code of Criminal Procedure of the RSFSR). However, in these cases, we are talking about a certain post-crime the consent of the victim to harm.
Hypothetically, it is possible to consider the mutually agreed between the infringer and the "victim" causing harm among the circumstances that in the domestic criminal law are called excluding the crime of the act, along with the circumstances that allow harm due to need to protect(see Art. 37-39 of the Criminal Code of the Russian Federation). The consent of the "victim" to harm, I think, should be attributed to a group of circumstances causing harm in special conditions.
The nature of the investigated circumstance of causing harm indicates that the "victim" voluntarily (under the compulsion of any personal reasons) goes to undergo harm in order to achieve great benefit. Here is the amount of harm must be limited by the scope of the law. For example, harm in the conduct of sports is limited by the laws on physical education and sports, in particular by the rules of sports; the harm allowed by the transplantation of human organs / tissues is limited by the legislation on health care, in particular by the Law of the Russian Federation of December 22, 1992 No. 4180-1 "On transplantation of human organs and (or) tissues"; etc.
Allowing reasonable harm is a forced compromise for a person leading an active lifestyle in society. In any case, the intention of the harm-doer is aimed at achieving greater good. For example, a homeopathic doctor offers the patient a remedy to cure, from which the latter must temporarily experience severe pain and through this pain heal. The harm, inflicted The "victim" must be reasonably foreseen by the doctor.
If the harm to health is caused with the desire to achieve a socially harmful goal or has affected other socially protected interests, then such an act can be said to be criminal and with the consent to harm the “victim” himself. In this case, liability should be subject to the tortfeasor, and in some cases - and the "victim", for example, in case of self-harm - Art. 339 of the Criminal Code of the Russian Federation. In the last example, the consent of the victim to harm himself cannot be considered legitimate, since real harm is inflicted, in addition to the interests of the victim, and other objects, in particular, the established order of military service.
The consent of the “victim” to harm as a circumstance eliminating the criminality of the act or the thoroughness of the punishment was considered by such outstanding researchers of the problems of criminal law as I. Bentam, F. List, N. A. Neklyudov, N. S. Tagantsev 1. Some Soviet scientists (E.V. Blagov, Ya.M. Brainin, A.N. Krasikov, A.A. Piontkovsky, A. I. Santalov, I. I. Slutskiy and others).
The study showed that among practitioners competent to make decisions on the initiation and termination of criminal cases, on release from criminal liability or from punishment, the attitude to the consent of the “victim” to harm as a possible basis for exemption from criminal liability or exclusion of the crime of an act is ambiguous , since this basis is unknown neither to the legislation, nor to the investigative and judicial practice. Therefore, only 27% of the respondents expressed their readiness, under appropriate conditions, to consider this harm in the framework of circumstances that exempt from criminal liability or exclude the crime of the act ”1.
It seems advisable to consider two groups of such conditions: first - conditions relating to the agreement reached between the tortfeasor and the "victim"; the second - the conditions related to the circumstances of the choice of behavior by the tortfeasor and the “victim”.
Among basic conditions (related to consent), in which a refusal from criminal prosecution or its termination in relation to a person who caused harm in connection with the consent of the “victim” is possible, it is necessary to highlight:
a) validity, b) preliminary, c) admissibility of the consent (request) of the "victim".
The consent (desire) of the "victim" to self-harm will be his private matter until the given consent (desire) oversteps the scope of the law. It seems that the maximum expansion of the scope of the law will not place human life as an object of harm. Any arguments in favor of a voluntary, painless, light, sparing and relieving from suffering "good", "good" death (euthanasia) are insignificant on the scales of morality and humanity. The deprivation of the life of another person by a person is the gravest sin before the universe in any period of mankind, as well as the deprivation of life. We must not allow the times of an ingenious civilization, scientific and technological progress to change the nature of human values, disguising human impotence, weakness, and the desire to get rid of the "extra burden" under virtue.
Perhaps in the modern world it sounds paradoxical, but nevertheless ... And death, dragged out by the opposition of life, slowed down by doctors, should be worthy, because it can relieve a person's torment, the agony of death. The human attitude towards the dying person, his environment in the last time of his life with the values that he has always lived with, is able to solve this problem. And maybe that is why institutions for doomed sick people (the so-called hospices) have arisen and are emerging in our country.
It should not be forgotten that a person who has gone through the intolerable suffering of the disease has the right to refuse help, including medical assistance (see part 2 of article 45 of the Constitution of the Russian Federation), and violence (in providing assistance) in this case will also be cruelty under the guise of virtue ... In this regard, maybe (even, most likely), the authors are right who allowed passive euthanasia, since the voluntary renunciation of life, expressed in a passive, non-violent way of ending it, indicates that the highest good on earth is bestowed on earth as natural, and then social law, but not obligations, - the right that is enshrined in Art. 2, 20 of the Basic Law of Russia.
As conditions of lawfulness of harm, with consent (optional) "the victim», related to the circumstances of the choice of behavior the inflictor of harm and the "victim" can be distinguished: a) the purpose of causing (possible causing) harm - achievement of benefit, greater benefit, assistance in self-realization, in the implementation of the desire of the "victim" to an active lifestyle, and in some cases - relief of suffering; b) it is possible to do otherwise - a person can avoid the danger of an offensive or the actual onset of harm, but he deliberately goes to inflict (suffer) this harm or the possibility of causing it (suffer) in order to achieve the specified goal; v) the reality of the situation - a person is placed in the conditions of choice by a specific life fact (for example, the functioning of the sports section, the successful conduct of a new cosmetic operation, the opening of a homeopathic clinic, etc.).
Thus, in the criminal legislation it is desirable to regulate the possibility of causing harm with the consent (request) of the "victim". This opportunity arises from the natural desire of a citizen for an active life position in society, for protection, justice, compassion. The responsibility of the subject for causing harm with the consent of the “victim” (at his request) should be expressed in its positive aspect - approval of the lawful behavior of the causer of this harm.
- See: Approximate US Criminal Code. Official project of the Institute of American Law / translated from English. A. S. Nikiforova; ed. and with a foreword. B.S. Nikiforova. M .: Progress, 1969.S. 61.
- See: Indian Penal Code (Law of 05/10/1860) / trans. from English A. S. Mikhlina; under the editorship and with a foreword. B.S. Nikiforova. M .: Inostr. Lit., 1958.S. 61-62.
- Cases of exemption from the obligation to testify by a judge, a juror, a lawyer, a defender of a suspect / accused, a clergyman, a member of the Federation Council of the Federal Assembly of the Russian Federation, a deputy of the State Duma of the Federal Assembly of the Russian Federation are provided for in Art. 51 of the Constitution of Russia, part 3 of Art. 56 of the Criminal Procedure Code of the Russian Federation, art. 21 of the Federal Law of 08.05.1994 No. З-ФЗ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation." According to § 139 of the Criminal Code of the Federal Republic of Germany, a clergyman, a relative of the guilty person, a lawyer, a defender, a doctor are exempted from criminal liability / punishment for failure to report planned criminal acts under certain conditions.
- Cases of exemption from the obligation to testify by a judge, a juror, a lawyer, a defender of a suspect / accused, a clergyman, a member of the Federation Council of the Federal Assembly of the Russian Federation, a deputy of the State Duma of the Federal Assembly of the Russian Federation are provided for in Art. 51 of the Constitution of Russia, part 3 of Art. 56 of the Criminal Procedure Code of the Russian Federation, art. 21 of the Federal Law of 08.05.1994 No. З-ФЗ "On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation." According to § 139 of the Criminal Code of the Federal Republic of Germany, a clergyman, a relative of the guilty person, a lawyer, a defender, a doctor are exempted from criminal liability / punishment for failure to report planned criminal acts under certain conditions.
- See: Beitam I. Introduction to the foundations of morality and legislation. Basic principles of the Civil Code. Basic principles of the Criminal Code. SPb. : Russian book trade, 1867. T. 1: Selected Works. P. 168; List F. Textbook of criminal law. A common part. M .: Type A. I. Mamontova, 1903.S. 164; Neklyudov N.A. Criminal law. S. 40-41; Tagantsev N. S. Russian criminal law: lectures. 2nd ed. Part General. SPb .: State. type., 1902. T. 1,2. S. 499-500.
- See: Blagov E.V. Fundamentals of the application of criminal law. Yaroslavl: YarsU, 1992.S. 36; Brainin Ya.M. Criminal liability and its basis in Soviet criminal law. M.: Jurid. lit., 1963, p. 247; Krasikov A. N. The essence and significance of the consent of the victim in the Soviet criminal law. Saratov: SSU, 1976, pp. 24, 29, etc .; The course of Soviet criminal law: in 5 volumes / otv. ed. N. A. Belyaev, M. D. Shargorodsky. L.: Leningrad State University, 1968.Vol. 1: General Part. P. 463, 517 (A.I.Santalov); The course of Soviet criminal law: in 6 volumes / iodine ed. A. A. Piontkovsky, G. S. Romashkina, V. M. Chkhikvadze. T. 2.P. 393-395 (L. L. Piontkovsky); Slutskiy I. Ya. Circumstances precluding the public danger of an act under Soviet criminal law: author. dis .... dr. jurid. sciences. L., 1954.S. 5.
- At the same time, for some (short) time, a note to Art. 143, excluding punishment if the murder was committed at the insistence of the murdered person out of compassion. The “life” of this note turned out to be too short, so there is no need to speak of a positive legislative experience.
- Some of the law enforcers tried on the pages of the press to justify the need for an introduction to Ch. 8 of the Criminal Code of the Russian Federation article on the consent of a person to harm him (see: K. Shirokov I agree to harm as a circumstance precluding the criminality of the act // Legality. 2006. No. 9. P. 54-55).
- See: Kovalev M.I. The Right to Life and the Right to Death // Soviet State and Law. 1992. No. 7. S. 72; Maleipa M.N.On the right to life // Soviet state and law. 1992. No. 2. S. 58.
