Crime committed through negligence

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The concept of a crime of negligence

Carelessness, characteristic of criminal acts, occupies a significant share among all crimes committed. The progress that has taken place in the scientific and technological direction has had a great influence on the emergence of illegal actions. Their consequences, as a rule, are of increased danger. Crimes committed with guilt in the form of negligence underlie the creation of certain knowledge that contributes to their prevention.

A crime committed carelessly is based on the frivolous attitude of the perpetrator, his arrogance and negligence.

These types of criminal actions also include those that were committed with intent, in the presence of a careless attitude to the consequences.

There is a wide variety of crimes committed in the presence of a careless form of guilt. They can be based on a variety of circumstances arising in the process of implementing social relations.

Crimes may be caused by technical, official and professional negligence. Some of them are characterized by domestic negligence associated with violation of the rules underlying the protection of life, health of people and their property.

This type of action has a special social danger, which is justified by the latency and negligence of the subjects of the acts.

Qualified legal assistance will help minimize the punishment!

Death due to negligence is difficult to anticipate or predict. Often, one wrong move or action can cause death. Persons who find themselves in a difficult life situation and who require qualified assistance and legal support in order to represent the interests of the accused or injured party in court are advised to contact lawyers specializing in cases involving a crime against life and health.

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Types of crimes due to negligence

Criminal law contains two types related to negligence:

frivolity, which manifests itself in foreseeing the possibility of consequences of a socially dangerous nature when committing crimes, but with the presence of an arrogant, groundless expectation that the consequences will be prevented. The intellectual element in this case is the anticipation of the possible occurrence of negative results. The volitional component lies in the arrogant calculation of preventing consequences. Frivolity is characterized by a conscious violation of the rules governing precaution. It is the awareness of one’s own wrongfulness that makes these crimes more dangerous than those whose guilt is expressed in the form of negligence. Frivolity has a significant difference from intent, manifested in indirect form. This difference lies in the volitional element, which is characterized by the assumption of consequences that pose a danger;
negligence, which is manifested in failure to foresee the fact that consequences will occur, although the subject himself should have foreseen them with a sufficient level of care and forethought. The objective component of negligence is normative and is expressed in the obligation of individuals to foresee the consequences, which requires care and forethought. The duty may be established by law, official or professional duties and other rules.

The subjective component lies in the ability of individuals to foresee the consequences that may occur as a result of specific illegal actions.

Intention, its types

1. Intent

(Article 25 of the Criminal Code of the Russian Federation) - this is the most common form of guilt - in 227 articles of the Special Part of the Criminal Code out of 256, the legislator provided for it. Intentional crimes pose the greatest danger to society, which naturally arouses particular interest among scientists and practitioners. For the first time, intent as an independent form of guilt received a clear theoretical justification in C. Beccaria’s treatise “On Crimes and Punishments,” published back in 1764. It should be noted that Russian criminal law traditionally adheres to the main provisions of this treatise. Part 1 art. 25 of the Criminal Code of the Russian Federation establishes: “A crime committed intentionally is recognized as an act committed with direct or indirect intent,” i.e. distinguishes two types of intent.

2. Direct intent

occurs when a person was aware of the social danger of his act, foresaw the possibility or inevitability of the occurrence of socially dangerous consequences and desired their occurrence (Part 2 of Article 25 of the Criminal Code).
The consciousness
of a person must cover all the factual circumstances of the case, provided for by the disposition of the relevant norm of the Special Part of the Criminal Code, and their social significance.
Thus, when committing theft of someone else's property with entry into a home, the culprit is aware that he is unlawfully taking someone else's property without compensation in a secret way with illegal entry into the home. A person’s awareness of all these circumstances also determines the awareness of the social danger of behavior.
The second intellectual moment of direct intent is foresight,

those.
a person’s mental representation of the direction of development of cause-and-effect relationships between his act and the socially dangerous consequences that have occurred, and the anticipation of the possibility
or
inevitability
of their occurrence.
Thus, a killer, cutting off the head of a victim or using a powerful explosive device, foresees the inevitability of death. At the same time, when shooting at a victim from a considerable distance, a person foresees only the possibility of death, which depends on various circumstances (ballistic, skill of the shooter, etc.). However, the consequences are foreseen as realistically possible,
and not
abstract.
Volitional moment

direct intent is
the desire for
socially dangerous consequences to occur when the will of a person is mobilized to achieve specific consequences. The perpetrator acts purposefully. Therefore, if a specific goal is indicated in a criminal law norm, then intent can only be direct. But this does not mean that the desired consequences and the goal are always the same. Three situations can be distinguished.

The first, most often encountered in judicial practice, is when the criminal consequences coincide with the goal of the perpetrator. Thus, a person, out of revenge for an insult, kills the offender. The goal of dealing with the enemy coincided with the desire to cause his death.

In the second situation, the desired consequences act as an intermediate stage in the commission of another crime. So, K. and P., with the intention of creating a gang, kill a police officer in order to seize his weapon.

And the third situation is when the desired criminal consequences are a means of achieving a certain goal. Thus, the culprit, pursuing the goal of quickly obtaining an inheritance,

gives a lethal dose of poison to his elderly father, who dies. In this case, the death of the parent was a necessary condition for receiving the inheritance.

The legislative formula of direct intent (knows the act - foresees the consequences - desires the consequences) is provided for crimes with a material element, in which criminal consequences are a mandatory feature. And the volitional moment of intent extends to them.

The formula of direct intent in crimes with a formal composition looks somewhat different, when the legislator considered it necessary to extend the criminal consequences beyond the scope of the composition. In these cases, intellectual and volitional aspects are transferred to action.

For example, insult, i.e. humiliation of the honor and dignity of another person, expressed in indecent form (Part 1 of Article 130 of the Criminal Code). In this composition, the limits of desire are limited to the commission of an act - to humiliate another person in an indecent form.

The norms of the Special Part of the Criminal Code of the Russian Federation do not indicate the possible type of intent. However, there are certain features of constructing the composition that predetermine the possibility of only direct intent: a) in all crimes with a formal composition; b) if the disposition specifies the purpose of committing the crime.

3. In part 3 of Art. 25 of the Criminal Code of the Russian Federation determines the content of intellectual and volitional moments of indirect intent. A crime is considered committed with indirect intent if the person was aware

the social danger of his actions (inaction), foresaw
the possibility
of socially dangerous consequences, did not want, but
consciously allowed

indifferent
to them .

The first intellectual moment - awareness of the act - is formulated in the same way as in direct intent, their content is adequate.

The second intellectual point - the anticipation of consequences - is defined differently. With indirect intent, a person foresees only the possibility of consequences. Foreseeing the inevitability of their occurrence is characteristic exclusively of the direct. This is the first difference between indirect intent and direct intent.

The main difference is made in the characteristics of the volitional moment. The law emphasizes that the person does not want the consequences to occur. The perpetrator does not need these consequences either as an ultimate or as an intermediate goal. The purpose of the person is outside the scope of the crime, and socially dangerous consequences are a by-product of criminal actions. And the culprit agrees with their onset, either consciously allowing them or being indifferent. So, a person, being in a state of drug intoxication, opens random fire in the room and kills one of those present.

When assessing the elements of a crime legally, it is necessary to keep in mind that indirect intent is possible only in material elements.

The division of the intentional form of guilt into direct and indirect intent is of great practical importance in the classification of crimes. Thus, during preparation and attempt, only direct intent must be established; Organizers and instigators act with direct intent. The correct determination of the type of intent contributes to the individualization of punishment for the perpetrators.

4. In addition to the legislative division of intent into direct and indirect, in the theory of criminal law and judicial practice, other types of intentional forms of guilt are distinguished. Thus, according to the time criterion, intent is distinguished as “suddenly arising” and “premeditated”. The first type of intent is characterized by the fact that it arises at the scene of the crime and is realized instantly or after a short period of time. Sudden intent is often formed as a result of certain victimized (provoking) behavior of the victims. In such cases, it represents a lesser degree of public danger than a premeditated one.

With premeditated intent, the criminal intent is realized within a certain time after its occurrence. During this period, the person considers a plan to commit a crime, eliminate obstacles, sometimes there is a “struggle of motives” (thirst for profit and fear of punishment, pity for the victim, etc.). This type of intent, as a rule, indicates a higher degree of social danger of the crime and the person who committed it.

The next criterion for dividing intent is the certainty of presentation

the perpetrator about the socially dangerous consequences of his act. Definite and indefinite intent are distinguished.

Certain intent

occurs when the perpetrator clearly understands the nature of the consequences of his act and their size.
This type of intent can be simple,
when the subject foresees one specific consequence, for example, the death of the victim in a murder, or
alternative,
when the perpetrator foresees the occurrence of two or more consequences (but specific). Thus, the perpetrator, when stabbing the chest with a knife, foresees the possibility of causing death or serious harm to health and desires or consciously allows the occurrence of any of them. With this type of intent, the qualification of the actions of the perpetrator is carried out in accordance with the consequences that occurred (Article 105 or Article 111 of the Criminal Code of the Russian Federation).

Uncertain intent

characterized by the fact that the perpetrator, foreseeing the onset of criminal consequences, does not specify them. He only has a general idea of the harm he will cause through his actions. Most often, this type of intent occurs when causing bodily harm in fights, when the limits of necessary defense are exceeded, or in a state of passion. Such acts are classified depending on the actual consequences.

Composition of a crime committed through negligence

In their composition, these types of crimes are common and differ only in the subjective side, which manifests itself in the form of negligence.

A careless form of guilt presupposes the presence of a frivolous expectation that the consequences of an unlawful act will be eliminated, or an absolute lack of assumptions about the occurrence of such consequences.

To qualify acts, the form of negligence is important, which can be expressed in the form of frivolity or negligence.

The rest of these crimes are characterized by:

the presence of a protected object that is encroached upon by the act itself;
the objective side, which can be expressed both in the form of active actions and inaction;
subject, which can be both general and special.

Comments on Article 26 of the Criminal Code of the Russian Federation

The Criminal Code of the Russian Federation does not disclose the normative concept of negligence, establishing only its forms.

Carelessness is a form of mental attitude of the subject to the committed act and its consequences, in which there is no volitional desire of the person to cause socially dangerous consequences.

Article 26 of the Criminal Code of the Russian Federation provides for two forms of reckless crimes:

1) a crime committed due to frivolity;
2) a crime committed due to negligence.

A crime committed recklessly

Frivolity manifests itself both from an intellectual and volitional point of view. The intellectual component is manifested in the possibility of foresight and the arrogant expectation that the consequences that will occur as a result of the crime will be prevented. The volitional part consists of having a desire to prevent them.

Thus, when committing an act that has a careless form of guilt, a person is conscious only of the actions themselves, without seeing in them a social danger, the manifestation of which is characteristic only for the moment when the consequences actually occur.

An example of a crime associated with frivolity may be causing death by a driver of a vehicle who has reached high speed limits, but believes that in the event of an unusual situation he will be able to brake and prevent an emergency, but at the required moment he realizes a malfunction in the braking system. and hits a pedestrian.

This example allows us to establish that a person has a desire to avoid consequences associated with a public danger, foresees the possibility of its occurrence, however, counting on the serviceability of his own car, he believes that negative consequences cannot occur. The motorist's calculation is not justified; as a result, the pedestrian's death occurs.

Additional features and nuances

The punishment for a careless crime depends on the severity of the consequences. The culprit can get off with a fine of several tens of thousands of rubles, be forced to attend correctional or forced labor, and lose his freedom. The most severe punishment is imprisonment, with a maximum term of 2-3 years , while for intentional murder the offender serves a prison sentence for 20 years, if not life.

The criminal must prove that he behaved carelessly and did not want the tragic consequences that had already occurred. Practice shows that sometimes a person manages to completely avoid responsibility - if the court is convinced that the incident is not his fault. This usually happens in the medical field - it is difficult to prove a doctor’s guilt and hold him accountable.

Crime committed by negligence

Negligence from the point of view of a criminal offense is characterized by a negative intellectual and volitional aspect. The presence of criminal negligence indicates not only reluctance and avoidance of negative consequences, but also failure to foresee the possibility that they will occur. At the same time, each subject is the bearer of the obligation to show care and foresight in relation to the consequences that may occur as a result of the commission of a particular action.

For criminal negligence, there must be an objective and a subjective criterion. From the point of view of the first, a person is obliged to foresee the likelihood of consequences occurring. The second criterion indicates the existence of the possibility of foreseeing the occurrence of such consequences.

It is possible to qualify guilt in this particular form only if there is a combination of data and criteria. In the event that one of them is missing, guilt is excluded, and with it criminal liability.

The absence of guilt does not mean the presence of a criminal act, but a case (incident). An example of a crime would be a fight that takes place against the background of a friendly dispute, as a result of which both persons receive injuries, while in one of them they are incompatible with life.

As we have already noted, according to Art. 109 of the Criminal Code of the Russian Federation qualifies causing death by negligence as frivolity

, and due to
negligence
.

According to Part 2 of Article 26 of the Criminal Code of the Russian Federation, a crime is recognized as committed due to frivolity if the person who committed it foresaw the possibility of socially dangerous consequences of his actions (inaction), but without sufficient grounds for this, arrogantly counted on preventing them. In other words, a crime can be committed through frivolity if the perpetrator foresees the possibility of death, but without sufficient grounds, hopes to prevent it. The perpetrator may consciously rely on his own strengths, the actions of other persons, or any specific circumstances. He deliberately violates certain precautionary rules. These may be actions that contradict scientific data or professional rules, are prohibited by law, but are not a crime, and also in cases where the person did not have the right to engage in this profession.

This legislative formulation of a crime committed out of frivolity in a certain way resolved the previously existing debatable issue of whether the formula of negligence, which was contained in Article 9 of the General Part of the Criminal Code of the RSFSR of 1960, covered the consciousness of the perpetrator of the social danger of the act he committed, since the norms of the Special Part of the Criminal Code provided for formal offenses crimes committed through negligence.

In the criminal law literature there have been various judgments regarding whether the perpetrator is aware of the social danger of the act (action or inaction) he commits due to criminal arrogance. Some authors proceeded from the fact that “with arrogance, the subject, despite foreseeing the possibility of the occurrence of socially dangerous consequences, is not aware of the social danger of the act he commits”[1], while others adhered to a different point of view. According to B.A. Kurinova and A.I. Rarog, the authors of the “Course of Soviet Criminal Law”, the absence in the law of an indication that the perpetrator is aware of the nature of the actions he commits does not give grounds to conclude that the person is not aware of them. “In reality, the subject foresees the possibility of socially dangerous consequences; he is necessarily aware of the social danger of the actions themselves, because foreseeing the danger of consequences is possible only by understanding the actions.”[2]

Based on the rule of law, proving guilt in case of criminal arrogance should consist of establishing the obligation to foresee consequences (objective criterion) and the ability of a particular person to such foresight (subjective criterion). According to most scientists, the objective criterion is normative in nature, from which it follows that any person who violates the precautionary rules existing in society “is obliged to foresee the possible socially dangerous consequences of this violation.”[3] It is easy to see that here we are faced with another presumption, very convenient for practice, but carrying with it the potential for innocent liability.

Foreseeing by a person the possibility of the occurrence of socially dangerous consequences of his act constitutes the intellectual element of criminal frivolity, and arrogant calculation without sufficient grounds to prevent them is its volitional element.

The volitional element of criminal frivolity lies in the unfounded, without sufficient grounds, arrogant (frivolous) calculation to prevent socially dangerous consequences. This feature of the volitional content of frivolity is due to the depravity of a person’s intellectual activity, an incorrect assessment of his strengths, factors and other circumstances, which, in his opinion, should have prevented the onset of socially dangerous consequences. Due to his misconception regarding the true essence of factors and circumstances, a person chooses a socially dangerous way of realizing his intentions, being confident that he will be able to avoid criminal consequences.

A frivolous calculation to prevent consequences is considered an integral element of the volitional moment. However, calculation, including frivolous calculation, is first of all an intellectual activity, it is thinking, and only then a volitional activity, expressed in the person’s failure to show the necessary volitional efforts for a more thorough calculation of the possibility of preventing the predicted harmful consequences. The frivolous nature of the calculation is evidenced by the fact that the consequences occurred. If a person had reason to count on any circumstances, but they turned out to be insufficient to prevent the result, which the person could not have known about, then in this case there is no guilt, and therefore there are no grounds for criminal liability (innocent causing of harm - happening).

When characterizing the intellectual element of criminal frivolity, the legislator indicates only the possibility of foreseeing socially dangerous consequences, but omits the person’s mental attitude to action (inaction). This is explained by the fact that the acts themselves, taken in isolation from the consequences, usually do not have criminal legal significance. When committing a crime with criminal frivolity, a person must at least in general terms foresee the development of a causal relationship, otherwise it is impossible not only to foresee these consequences, but also to count on their prevention. The subject foresees how the causal relationship could develop if it were not for the circumstances that he is counting on and which, in his opinion, should interrupt the development of the causal relationship.

However, since criminal frivolity, as a rule, is associated with a conscious violation of certain precautionary rules established to prevent harm, awareness of behavior makes this type of reckless guilt more dangerous than negligence. A person acting out of frivolity is always aware of the negative significance of possible consequences for society and that is why he strives to prevent them. Consequently, in case of criminal frivolity, the perpetrator is always aware of the potential social danger from the act he has committed.

In its intellectual element, criminal frivolity has some similarities with indirect intent. Their difference lies in the fact that with indirect intent, the culprit foresees a greater likelihood of criminal consequences, and with frivolity, the culprit foresees the occurrence of these consequences to a lesser extent. With intent, the subject foresees specific consequences, and with frivolity, these consequences appear in a general form, although the perpetrator foresees not the abstract, but the real possibility of their occurrence.

Foresight of socially dangerous consequences with criminal frivolity differs from foresight with intent in that with frivolity the subject foresees only the possibility, and not the inevitability, of the occurrence of the consequence. Due to his lack of awareness of the actual development of the causal relationship, he frivolously and frivolously approaches the assessment of those circumstances that, in his opinion, should prevent the onset of a criminal result, but in fact turned out to be unable to counteract its onset. Thus, with frivolity, the anticipation of the possibility of a consequence occurring is accompanied and neutralized by the anticipation of its prevention.

The main, main difference between frivolity and indirect intent lies in the content of the volitional element. If, with indirect intent, the guilty person consciously allows the occurrence of socially dangerous consequences, that is, he treats them favorably, then with frivolity there is not only the desire, but also the conscious assumption of these consequences, and, conversely, the subject strives to prevent their occurrence and treats them negatively.

An example of a crime with indirect intent is the case of Avdeev, who was convicted under Part 1 of Article 218 and paragraphs “d” and “h” of Article 102 of the Criminal Code of the RSFSR of 1960. He made an explosive device from previously purchased explosives and an electric detonator and installed it at the entrance to his land plot. When a group of teenagers tried to enter the site, the device went off, and the explosion killed three of them (Zelenov, Mayer and Groshev). In cassation appeals, the convict and his lawyer asked to reclassify Avdeev’s actions under Article 106 of the Criminal Code, considering this crime to be careless. On April 28, 1992, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation left the verdict unchanged, indicating the following. A year before the crime in 1990, Avdeev had already manufactured and used a similar explosive device, therefore, he had experience in handling explosives. Shortly before the explosive device was re-installed, he expressed in a conversation with witnesses his intention to frighten people who wanted to enter his site “more seriously” than he did the first time. These circumstances, as established by the Judicial Collegium, indicate that Avdeev “was aware of the social danger of his actions, foresaw their socially dangerous consequences and consciously allowed these consequences to occur.”[4]

With criminal frivolity, in contrast to indirect intent, consciousness and will are not unlimited in the possible negative consequences of their act, but are aimed at preventing them. The law characterizes the volitional content of frivolity not only as hope, but precisely as a calculation to prevent socially dangerous consequences, which has very real, although insufficient, grounds. Committing a crime with criminal frivolity, the subject, foreseeing in a very abstract form the possibility of the onset of socially dangerous consequences, does not show indifference, does not count on chance, on “maybe”, which, in his opinion, can allegedly counteract the criminal result, but hopes for objective circumstances, on the actions of other persons, mechanisms, safety devices, on the forces of nature, the significance of which he assesses incorrectly, as a result of which the expectation of preventing a criminal result turns out to be unfounded, arrogant, and without sufficient grounds for this. The circumstances that the subject relies on in case of criminal frivolity, despite all their diversity, can be grouped as follows: 1) related to the personality of the guilty person (strength, dexterity, knowledge, skill, experience, skill, and so on); 2) related to the environment in which the crime is committed (night time, absence of people, and so on); 3) related to the actions of other persons (the expectation that others will put out the fire in the forest); 4) reliance on the forces of nature, mechanisms, and so on.

An example is the case of Sh., who was convicted of the premeditated murder of a teenager under the following circumstances. In order to prevent the theft of fish from the nets, he made an alarm system, for which he ran wires from his house to the walkways from which the nets were placed into the river and connected them to a 220 V power supply, and installed a bell in the house. While trying to disconnect the wires from the alarm system in order to steal a fence at night, a minor thief was electrocuted. Sh. foresaw the possibility of serious consequences and, in order to prevent them, notified his fellow villagers about the existence of an alarm under significant voltage and asked the neighbors not to allow children to this place, and also showed the alarm to the shepherds. In addition, he took a number of technical measures to prevent accidental electric shock, and also connected the alarm to the power supply only at night and only when he was at home. Therefore, in the decision on this case, the Plenum of the Supreme Court of the USSR rightfully indicated that “in this case, Sh. showed criminal arrogance, since he knew about the danger that a 220 V electric current poses to humans, but frivolously hoped to prevent serious consequences. At the same time, he was not counting on chance, but on such objective factors that, in his opinion, excluded the possibility of grave consequences.” In such a situation, what Sh. did does not contain the elements of intentional, but careless murder.[5]

Calculation, although unfounded and arrogant, on specific factors that, in the opinion of the perpetrator, can prevent the onset of socially dangerous consequences, significantly distinguishes criminal frivolity from indirect intent, in which such calculation is absent, although an unfounded hope is possible that harmful there will be no consequences.

In general, the result on this issue can be considered that the basis of a person’s mental attitude to the socially dangerous consequences of criminal arrogance is the intellectual moment. The will is inactive in relation to them, although the subject’s behavior itself is volitional.

When death is caused by negligence, it is necessary to determine that the person did not foresee the occurrence of socially dangerous consequences, although he should and could have foreseen their occurrence.

The problem of criminal negligence (unconscious negligence) is more complex and insufficiently developed in the theory of criminal law.

One of the points of view on this problem is the following: 1) denial of the possibility of a careless form of guilt when putting in danger of causing harm; 2) negligence can only occur when a criminal result actually occurs, when the presence of a person’s mental attitude to the consequences of criminal negligence is denied; 3) a limited area of punishable negligence, liability for which arises only in cases where the person should have and could have foreseen; 4) for liability for criminal negligence, one of the criteria is sufficient - objective or subjective.

We can talk about criminal negligence (unconscious negligence) when a person, for one reason or another, is obligated to behave in a certain way that precludes the occurrence of harmful consequences. At the same time, criminal law requires the existence of not one of two criteria of responsibility - objective or subjective, but their simultaneous presence.

For criminal negligence as one of the forms of guilt, the legal, normative nature is more significant. The law defines which socially dangerous consequences of a secondary nature are considered criminal in case of negligence. Only in this regard does the subject’s mental attitude to these consequences acquire legal significance. By its psychological essence, the very action (inaction) in case of negligence, as a result of which the rules of precaution are violated, is motivated and purposeful, volitional and conscious.[6]

However, the question arises: is this consistent with the principle of subjective imputation?

This problem is discussed in science and judicial practice. To solve it, it is necessary to find out what arguments to find out what arguments are put forward to protect criminal liability for negligence. The main argument is normative: criminal liability for negligence occurs when a person should have foreseen the socially dangerous consequences of his actions (inaction) and could have done this, that is, in the presence of an objective obligation and a subjective limit, an equal sign is actually put between the normative content of criminal negligence and the real mental process. To smooth out the problematic nature of this relationship, some authors begin to evaluate negligence as a psychological characteristic of a person in general. “Inattentiveness, lack of thought, carelessness,” considered A.A. Piontkovsky, - testify... to the presence of a certain really existing real mental attitude to the consequences that have occurred.”[7]

In accordance with the current legislation (Part 3, Article 26 of the Criminal Code of the Russian Federation), criminal negligence is characterized by failure to foresee the possibility of the occurrence of socially dangerous consequences in the presence of a duty (obligation) and the ability to foresee these consequences.

From the legislative definition of criminal negligence according to the Criminal Code of the RSFSR of 1960. it was not clear what the mental attitude of the perpetrator should be towards his act. Part 3 of Article 26 of the 1996 Criminal Code of the Russian Federation states that a crime is recognized as committed through negligence if a person did not foresee the possibility of socially dangerous consequences, although with the necessary care and foresight he should and could have foreseen them. A crime committed through negligence is characterized by less or erroneous awareness by the perpetrator of the factual and social characteristics of the act. The subject is not aware, but is obliged and had the opportunity to be aware of the nature of his actions.

The intellectual content of negligence is characterized by two characteristics: negative and positive. A negative sign of negligence is the person’s failure to foresee the possibility of criminal consequences and the lack of awareness of the unlawfulness of the act (action or inaction) being committed. The mental attitude of the perpetrator to his act in case of negligence is characterized by the consciousness of violating certain prohibitions, failure to foresee the onset of criminal consequences, or the fact that the person, while committing a volitional act, does not realize that he is violating the rules of precaution, or the lack of volitional control, which is lost due to the fault of this person. A positive sign of the intellectual aspect of criminal negligence is that the perpetrator should and could have shown the necessary attentiveness and foresight and foreseen the onset of actually caused criminal (socially dangerous) consequences. It is this feature that turns negligence into a type of guilt in its criminal legal understanding. It is established using two criteria: duty means an objective criterion, and foreseeability is a subjective criterion of criminal negligence.

The volitional aspect of criminal negligence lies in the fact that the culprit, having a real opportunity to prevent the criminal consequences of the act he commits, does not activate his mental powers and abilities to perform volitional actions necessary to prevent criminal consequences, and, therefore, does not exceed the real possibility in reality.

Liability for criminal negligence arises only if the person, although he did not foresee the possibility of the occurrence of a criminal consequence, should and could have foreseen its occurrence. Whether the perpetrator should have and could have foreseen the consequences of his act can be established on the basis of objective and subjective criteria. Obligation is an objective criterion of negligence, and foreseeability is a subjective criterion.

The objective criterion of negligence is normative in nature and means the obligation of a person to foresee the possibility of the occurrence of socially dangerous consequences in compliance with the requirements of the precautions and necessary care required for this person. This responsibility may be based on the law, on the official status of the perpetrator, on professional functions, on the basis of safety regulations, operation of various mechanisms, hostel, etc. The absence of an obligation to foresee the consequences excludes the guilt of the person in actually causing them.

However, the presence in itself of such an obligation is not yet a sufficient basis for finding a person guilty. If there is an obligation to foresee consequences (the objective criterion of inevitability), it is also necessary to establish that the person had a real opportunity in this particular case to foresee the onset of socially dangerous consequences (subjective criterion), but did not realize this opportunity and did not avoid the consequences.

In the law, the subjective criterion of negligence is expressed by the phrase: “could have foreseen”, which means the personal ability of a particular person in a particular situation, if he has the necessary personal qualities (professional and life experience, competence, level of development and education, state of health, his physical data, degree of susceptibility, etc.), allowing one to correctly perceive the information arising from the situation of the commission of an act and draw reasonable conclusions (correct assessments), and foresee the possibility of socially dangerous consequences. This means that the possibility of foreseeing the consequences is determined, firstly, by the characteristics of the situation in which the act is committed, and secondly, by the individual qualities of the perpetrator. The situation should not be overly complex for the task of foreseeing the consequences to be in principle solvable. This criterion, when determining the presence of criminal negligence, has predominant importance, since criminal negligence can only occur within the limits of possible foreseeability of socially dangerous consequences. The presence of these two prerequisites makes it really possible for the perpetrator to foresee socially dangerous consequences.

Being a type of careless fault, negligence has some similarities with criminal frivolity. What is common to the intellectual element of both types of negligence is that the perpetrator does not foresee the real possibility of the occurrence of socially dangerous consequences (that is, their possibility in this particular case), although he could have foreseen such a possibility. The difference is that with frivolity a person foresees the abstract, that is, in other similar situations, the possibility of harmful consequences occurring and therefore realizes the potential danger of his actions, whereas with negligence he does not in any form foresee the possibility of such consequences occurring and, therefore , does not even realize the potential danger of the chosen method of behavior.

Frivolity and negligence have similarities in the volitional moment. In both cases, there is no positive attitude towards the possible consequence. And the difference between these types of negligence is that in case of frivolity, the perpetrator commits an action in the hope of preventing possible consequences, and in case of negligence, volitional efforts seem either useful or neutral to the perpetrator.

A novelty of the 1996 Criminal Code of the Russian Federation is the first inclusion in it of the norm on innocent causing of harm, which provides for two of its varieties. Part 1 of Article 28 of the Criminal Code of the Russian Federation enshrines this type of innocent causing of harm, which in the theory of criminal law is called a subjective case or “incident” and is defined as follows: “An act is recognized as committed innocently if the person who committed it did not realize and, due to the circumstances of the case, did not could be aware of the social danger of its actions (inaction) or did not foresee the possibility of socially dangerous consequences and, due to the circumstances of the case, should not or could not have foreseen them.”

In relation to formal crimes, this means that the person who committed a socially dangerous act did not realize and, due to the circumstances of the case, could not realize the social danger of his actions (inaction). This kind of “incident” is, for example, causing harm to the health of a person mistakenly taken for a murderer in order to detain him, if a combination of objective circumstances gave good reason to consider him the person who committed the crime.

In relation to crimes with a material component, the subjective case is that the person who committed a socially dangerous act did not foresee the possibility of socially dangerous consequences occurring and, due to the circumstances of the case, should not or could not have foreseen them. This type of subjective case is distinguished from negligence by the absence of either both or at least one of its criteria.

For example, K. was convicted of reckless murder committed under the following circumstances. Having lit a cigarette, he threw a burning match over his shoulder, which hit a gasoline barrel lying by the road and caused an explosion of gasoline vapors. At the same time, the bottom of the barrel flew out and, hitting S., caused him a mortal wound. Taking into account these circumstances, the Judicial Collegium for Criminal Cases of the Supreme Court of the RSFSR came to the conclusion that S.’s death was the result of an accident, since K.’s duties did not include foreseeing and preventing the actual consequences that occurred, therefore, he caused them without guilt.[8 ] In this case, the incident was stated due to the lack of an objective criterion of negligence. But practice knows many examples of the absence of guilt, due to the absence of only a subjective criterion.

Part 2 of Article 28 of the Criminal Code of the Russian Federation establishes a new, hitherto unknown type of innocent infliction of harm. It is characterized by the fact that the person who committed a socially dangerous act, although he foresaw the possibility of socially dangerous consequences of his actions (inaction), could not prevent these consequences due to the inconsistency of his psychophysiological qualities with the requirements of extreme conditions or neuropsychic overload. In such a situation, the infliction of harm is recognized as innocent not because of defects in the intellectual or volitional attitude, but due to the objective impossibility of preventing the onset of socially dangerous consequences for one of the two reasons specified in the law.

Firstly, the inability to prevent harmful consequences that are covered by the foresight of the actor excludes criminal liability if it is due to the inconsistency of the psychophysiological qualities of the harm-doer with the requirements of extreme conditions, that is, such unexpectedly arisen or changed situations for which the person is not prepared due to his psychophysiological qualities unable to make the right decision and find a way to prevent harmful consequences (for example, in the event of an accident due to design defects or manufacturing defects of a machine or mechanism).

Secondly, the act is considered innocent if the impossibility of preventing socially dangerous consequences is due to the discrepancy between the psychophysiological qualities of the harm-doer and his neuropsychic overload (for example, when working as an airplane pilot or an electric locomotive driver for the second shift in a row).

[1] Tikhonov K.F. On the issue of delimiting forms of guilt in Soviet criminal law // Jurisprudence. 1963. No. 3. P. 87; Commentary on the Criminal Code of the RSFSR 1960 - M., 1980. - P. 19.

[2] Course of Soviet criminal law: General part. L., 1968, T.1. P. 423; Utevsky B.S. Guilt in Soviet criminal law. M., 1950. P. 268; Filanovsky I.G. Socio-psychological attitude of the subject to crime. L., 1970. P. 134; Grinberg M.S. The concept of criminal arrogance // Jurisprudence. 1962. No. 2. P. 105.

[3] Dagel P.S. Carelessness. Criminal legal and criminological problems. M., 1977. P. 122.

[4] Bulletin of the Supreme Court of the Russian Federation. 1993. No. 5. P. 7.

[5] Bulletin of the Supreme Court of the USSR. 1969. No. 1. P. 24.

[6]See: Course of Soviet criminal law: In 6 volumes. M., 1970. T. 2. P. 320.

[7]Ibid. P. 320.

[8] Collection of decisions of the Presidium and rulings of the Judicial Collegium for Criminal Cases of the Supreme Court of the RSFSR. 1957-1959 M., 1960. P. 19.

Causes and conditions of careless crimes, their prevention

Committing crimes with a careless form of guilt has a number of personal factors, as well as situational elements that can play a role in each specific situation.

Determinants related to the subjective side of crimes are more associated with the irresponsible, undisciplined, careless attitude of the subject of the crime.

Organizational and managerial shortcomings, lack of proper control, impunity of individuals, and the presence of victimized behavior can also contribute to criminal acts.

Preventive measures that are used to prevent crimes of this type are complex and multifaceted. First of all, they have a general social and special criminological direction. The rules for labor protection, safe movement on the road, fire safety, etc. are used as standards when carrying out such work.

The traffic police has the most significant place in the system of bodies involved in the prevention of careless crimes. In order to eliminate the possibility of officials committing criminal acts, which may manifest themselves in official negligence, departmental regulatory bodies are created.

Criminal negligence - as a special form of guilt

Frivolity is condemned not only by the norms of public morality, but can also lead to legal liability. Considering frivolity as a special type of guilt, it is worth noting that the legislator defines it as more dangerous.

A study of the causes and factors of violations of laws shows that most often they are provoked by impunity. This is especially true for juvenile delinquency. Another significant point is frivolity. Surveys of juvenile offenders further confirm this fact.

Among all the cases from legal practice, the accused or convicted believed that there could be no consequences for their actions, calling the events an accident and the imposed punishment unfair. It is this moment when a person does not fully realize or does not want to admit his guilt, the subsequent responsibility, which makes frivolity a particularly dangerous form of guilt.

Frivolity in criminal law is a special, more severe form of guilt, when the person whose actions caused harm was not fully aware of their consequences.

The majority of road accidents occur due to carelessness, when drivers, relying on driving experience and their own skills, do not comply with safety measures in dangerous road conditions. Such offenses include driving while intoxicated, driving at high speed on ice or wet asphalt, in poor visibility. It is noteworthy that the judicial authorities, as a rule, do not regard such violations as frivolous, qualifying them according to the norms of the administrative code. Nevertheless, an element of frivolity is seen in them.

Thus, careless crimes in criminal law are classified as difficult to prove, difficult to qualify actions and determine punishments.

Liability for a crime committed through negligence

The presence of crimes related to negligence occupy a large share among the total number of illegal acts. The absence in such crimes of direct motivation, both to the illegal action itself and to the resulting consequences, creates the basis for the insufficient ability to foresee consequences on the part of the subject.

The very fact of committing such crimes is the cause of defective behavior of individuals, their incorrect attitude towards the actions being carried out and their results.

Criminal liability for crimes of this type is assigned if the subjective side of the committed act falls under the signs of frivolity or negligence. The absence of the required signs of guilt is a reason for refusing to apply criminal liability to persons who have become subjects of illegal actions.

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Concept of innocent harm

If a citizen, for some reason, could not guess about the danger of the actions being performed, he is automatically released from liability. This is stated in Article 28 of the Criminal Code of the Russian Federation. This regulatory act provides for exemption from criminal liability in two cases:

the culprit did not know and could not know that he was committing illegal actions;
the offender could have foreseen the consequences, but circumstances did not allow him to prevent the onset of unfavorable events.

Most often, innocent harm occurs under the influence of the latter factor. Not every person has the necessary psychological, volitional and physical qualities to prevent possible danger when acting in an unusual situation.

The psychological aspect of imprudence and frivolity: preventive measures

Preventive measures to prevent criminal negligence and frivolity are selected based on the reasons and social factors that contributed to the increase in the number of such acts.

Also read: Sample of writing a complaint to the prosecutor's office about refusal to initiate a criminal case

At the present stage of development we observe:

the growing negative impact of the development of scientific and technological progress;
accelerated growth of production and economic sectors of society.

At the same time, there are trends in the development of a sharply negative attitude among young people towards any kind of restrictions in the form of rules, social norms, and legislative norms.

It is precisely such subjects of society that account for the bulk of frivolous offenses, careless, negligent offenses. This is where the negative impact of the development of information technology is seen. A number of researchers on this issue note the harmful influence of advertising, certain genres of musical art and cinema.

It is worth noting the latest attempts to introduce restrictions for film directors, which include a ban on showing chases in vehicles and cars, open shootouts between heroes, and other similar scenes. In many ways, such events by public organizations, deputies and the government can be classified as preventive measures.

Considering the background of official, professional negligence or negligence, among the reasons often cited are inconsistency of professional qualifications, position held, insufficient competence and inexperience of employees. The combination of these reasons and factors gives the legislation grounds to classify such situations as socially dangerous and difficult.