When characterizing the concept of complicity as a type of joint commission of a crime, one should take into account, first of all, that any joint activity is conceived only insofar as it, unlike the actions of an individual, is carried out not by one, but by several persons. In this regard, the recognition of the independent significance of the signs of “committing a crime by two or more persons” and “joint participation”, which is often found in legal literature, cannot be considered justified, since it logically allows for the possibility of participation in the commission of a crime by two or more persons in the absence of joint activity, and also joint activities in which there is no sign of participation in it by two or more persons. Meanwhile, one does not exist without the other: the lack of compatibility gives grounds to speak of the commission of one crime not by two or more persons, but by separately acting persons, which is far from the same thing; in turn, the absence of two or more persons excludes the possibility of recognizing the crime as jointly committed.
If we keep in mind the quantitative characteristics of the participants in a jointly committed crime and a crime committed in complicity, then in relation to the latter, we should not talk about any specifics, since according to Art. 32 of the Criminal Code of the Russian Federation, complicity presupposes the intentional joint participation of two or more persons, i.e. any set of participants. The question regarding their qualitative specificity is more difficult to resolve. Unfortunately, the legislator is silent about what he means by the term “persons”: only those who are sane, who at the time of committing the crime have reached the minimum age required for criminal prosecution - in a word, the subjects of the crime, or those who, due to insanity or failure to reach the required minimum age cannot bear criminal liability, since he is not the subject of a crime.
The opinion of the majority of representatives of the theory of criminal law on this issue has always been unambiguous: complicity is impossible when only one of the persons participating in the crime possesses, and the other does not possess, all the mandatory characteristics of the subject of the crime. In this regard, criminal law science does not recognize the presence of complicity in the so-called mediocre infliction of harm, in which the criminal plan is carried out by someone else’s hands, and in which “the one who prepared the child to set fire to the house, who gave the insane person a knife with which he committed murder, are from the point of view criminal law are the only culprits of arson or murder" (N. S. Tagantstv). The issue is resolved in a similar way in relation to crimes committed by a person capable of criminal liability, together with an insane person or a minor.
Judicial practice takes a slightly different position on this matter. In this regard, the most indicative resolution of the Plenum Supreme Court RF dated December 27, 2002 No. 29 "On judicial practice in cases of theft, robbery and robbery." In the original wording of paragraph 1, paragraph 12 of this resolution, it was stated that the actions of persons who stole someone else's property by theft, robbery or robbery by a group of persons by prior conspiracy or by an organized group should be qualified according to the relevant parts Articles 158, 161 and 162 of the Criminal Code of the Russian Federation on the grounds of “a group of persons by prior conspiracy” or “organized group”, if two or more perpetrators jointly participated in the commission of this crime, who, by virtue of Article 19 of the Criminal Code of the Russian Federation, are subject to criminal liability for the act. In the second paragraph of this paragraph, it was recommended that the actions of a person who committed theft, robbery or robbery through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances, in the absence of other qualifying criteria, be classified under the first parts of Articles 158, 161 and 162 of the Criminal Code. of the Russian Federation as the actions of the direct perpetrator of the crime (Part 2 of Article 33 of the Criminal Code of the Russian Federation). 1 paragraph 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 was excluded, which can be explained only by one thing: a change in the position of the highest judicial body on the issue of complicity in crimes committed jointly by persons capable and unable to bear criminal responsibility. This conclusion is confirmed by decisions made by the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, including the ruling of the Supreme Court of the Russian Federation dated 01.06.2010 No. 81-d10-11: disagreeing with the prosecutor’s arguments about the absence of a qualifying feature of a group of persons in the crime, since the crime was committed convicted together with a person who is not subject to criminal liability due to insanity. The panel of judges argued its position by the fact that the perpetrator committed the crime not with the help of a person not subject to criminal liability, but together with him. These and other decisions made by the highest judicial body in recent years indicate that, in the opinion of the highest judicial body, there are no signs of joint infliction of harm (and therefore complicity) when harm is caused by “the hands of others”; But they exist when a crime is committed jointly by a person who is capable and not capable of bearing criminal responsibility.
Even during the period of previously existing criminal legislation, in theory and judicial practice, the question also arose about the criminal legal assessment of the joint commission of a crime by several persons, the composition of which contains the characteristics of a special subject, if persons with and without such characteristics took part in this crime ( for example, theft of property together with the person to whom it was entrusted). The qualification rule developed at that time did not exclude the recognition of such crimes as committed in complicity, but at the same time took into account the fact that the objective side of them could only be carried out by a special subject. This rule first found its normative codification in Part 4 of Art. 34 of the Criminal Code of the Russian Federation, which states: a person who is not the subject of a crime specifically specified in the relevant article of the Special Part of this Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as its organizer, instigator or accomplice.
Thus, this is a deliberate, deliberate joint activity, there must be at least two persons involved in the action, this activity is only in connection with an intentional crime. Persons who jointly commit a crime are called accomplices. The law stipulates four types of accomplices: the perpetrator, the organizer, the instigator and the accomplice. Based on the nature of association (confluence in a crime) to jointly commit an unlawful act, the law names four forms of complicity: a group of persons, a group by prior conspiracy, an organized group, and a criminal organization. In addition, simple and complex complicity are distinguished. Co-execution (co-authorship) and complicity with division of roles.
This is the formula for the modern understanding of complicity, and it is enshrined in Art. 32 of the Criminal Code of the Russian Federation. Laconic and simple. However, is this so certain?
Listen to an example.
“Three hunters - A., B. and V. - were returning home. They saw a peasant in the distance smoking a pipe. A. turned to V. with a proposal to show his art and get into the peasant’s pipe. V. agreed, but set the condition that B. should lend his shoulder to V.’s gun. Consent was obtained. A shot followed; the bullet, however, did not hit the pipe, but the head, and the peasant was killed.
How to determine the responsibility of these three actors?
Let me remind you of the formula for complicity: deliberate, joint participation in the commission of an intentional crime.
According to the rules of qualification, based on the consequences, a modern investigator classifies the act as careless murder - Art. 109 of the Criminal Code of the Russian Federation, with a maximum sentence of the form of three years of imprisonment. Following the modern interpretation, the question of complicity will disappear, since such is impossible in a careless crime. However, will such a position of the law enforcement officer comply with the principles of criminal law: the principles of guilt, legality and justice.
The actions of the perpetrators, as you understand, cannot be considered as the execution by each of them of careless murder due to the fact that there is only one action and one result, which excludes multiple executions.
Careless complicity is also impossible here, since it is excluded by the law and the traditional attitude to complicity in the theory of criminal law. Impunity for these individuals is also unacceptable due to their fairly high social danger.
This example was first given by N.D. Sergeevsky and duplicated by A.N. Trainin. There is still no proper qualification regarding the above actions:
And there are many such examples in practice and in literature when criminal law turns out to be powerless when faced with socially dangerous acts.
In pre-revolutionary theory, the institution of complicity caused a lot of discussion.
The main subject of dispute is the concept of accessory complicity, i.e., the dependence of the responsibility of the accomplices on the responsibility of the performer.
A number of pre-revolutionary scientists, for example I. Ya. Foinitsky, believed that the responsibility of accomplices who themselves did not fulfill the elements of the crime contradicts the principles of guilt and causation. Therefore, when the actions of several persons coincide, each must be punished independently within the limits of their own guilt and contribution to causing damage.
However, the overwhelming majority of Russian scientists proved the existence of a subjective and objective connection with the commission of a crime of all accomplices and argued that complicity cannot be reduced to a simple sum of the acts of accomplices, but is a new criminal entity.
During the Soviet period, the first normative definition of complicity was given in the Guidelines on Criminal Law of the RSFSR (1919) and all subsequent “Fundamentals” and Codes.
The problems of complicity in crime are the subject of close attention of Russian criminologists even today. In the period from 1997 to 2007, the number of identified persons who committed a crime as part of a group ranged from 320,000 to 360,000. The increase in crime during the formation of modern economic relations forces specialists and legislative bodies to actively work in this direction.
The institution of complicity is one of the most complex in criminal law.
Nowadays a special chapter is devoted to this section of criminal law. 7 of the Criminal Code of the Russian Federation (Articles 32 - 36). The law's elaboration of this type of dangerous behavior is due to the fact that a crime can be committed by several entities. This circumstance requires special regulation of the conditions of liability of persons participating in the crime.
The increased public danger of complicity is due to the following:
The participation of several persons in a crime makes it possible to disguise crimes more thoroughly, which complicates the work law enforcement agencies to suppress them;
Various associations (groups) often take the path of committing many crimes;
In groups, for example, through the efforts of several individuals it is easier to commit a crime and cause damage, which will more significantly and deeply affect the objects of protection. That is why the participation of several persons in an act, other things being equal, causes an increase in the social danger of the attack itself in comparison with a similar attack by an individual.
Criminal law does not create a special basis for liability for complicity.
It remains for them committing an act containing all the elements of a crime provided for by criminal law.
The peculiarity of the basis of liability for complicity is formulated by additional rules provided for in Chapter. 7 (Articles 32 - 36 of the Criminal Code). These norms take into account that accomplices in a number of cases do not directly perform actions covered by the objective signs of the crime, and their dangerous behavior (organizing, instigating, aiding a crime) is carried out independently before, during or after the commission of the crime by the perpetrator.
As a special form of criminal activity, complicity is characterized by a number of objective and subjective characteristics.
A significant number of crimes are committed by the actions of several entities. In this case we're talking about about complicity in a crime.
Complicity in a crime is the intentional joint participation of two or more persons in the commission of an intentional crime (Article 32 of the Criminal Code).
The participation of two or more persons in a crime presupposes that all of them have reached the legal age of criminal responsibility, and were also sane at the time of the commission of the crime. Therefore, committing a socially dangerous act together with the insane or minors does not constitute complicity.
Complicity requires that the activities of the accomplices be joint. The concept of compatibility means the mutual conditionality of the actions of the participants and a single consequence for them. However, jointness should be not only an objective, but also a subjective sign of complicity. The joint actions of the accomplices in the subjective aspect is due to the coincidence of interests of the accomplices, the unity of the mental community.
The actions of all accomplices in the crime are deliberate. Complicity is excluded in careless crimes. Consequently, from the subjective side, it is determined not only by the subjective connection between the accomplices, but also by a certain mental attitude of the person to the act and its consequences. Complicity is recognized only as intentional joint participation in the commission of the same intentional crime.
The different degrees of coordination of the actions of the accomplices make it possible to distinguish two forms of complicity: complicity without prior agreement and complicity with a preliminary agreement.
Complicity without prior agreement The Criminal Code of the Russian Federation classifies the commission of a crime by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement - this is the least dangerous and less common form of complicity. It is characterized by a minimal degree of coordination (which is due to the impossibility of conspiracy before the crime) and is characterized by the joining of participants to the perpetrator of the crime only during its commission. Examples include murder in a group fight, rape and other attacks on the person.
Participation with prior agreement presupposes the existence of a conspiracy before the commencement of actions constituting the objective side of the crime, i.e. before the commencement of the actions provided for in the article of the Special Part of the Criminal Code. The varying degrees of agreement between the accomplices within the framework of this form of complicity allows us to distinguish the following varieties: a) a group of persons by prior conspiracy; b) organized group; c) criminal community (criminal organization) – Art. 35 of the Criminal Code.
Group with prior conspiracy occurs when participants agree to commit a crime together. An agreement (collusion) can be expressed verbally, in writing, or be the result of tacit consent. Crimes committed by prior conspiracy by a group of persons increase the punishability of the perpetrators. A crime is recognized as committed by prior conspiracy if it involved persons who agreed in advance to commit it together.
Organized group characterized by a greater degree of cohesion between the participants: the presence of leadership, the development of a plan to commit a crime, the distribution of roles and actions to implement the developed plan. It is characterized by professionalism and stability: accomplices, as a rule, unite to commit not one, but a number of crimes. An organized group more often commits crimes in the economic and business spheres. This type of complicity is considered a circumstance that increases responsibility for the act.
Criminal community(criminal organization) - the most dangerous of all the types of complicity mentioned above, it represents stable, cohesive, organized group persons created to commit grave or especially grave crimes, or an association of organized groups created for the same purposes. The stability of a criminal community is understood as the presence of long-term or permanent connections between its members, as well as specific methods of preparing and committing crimes. Criminal communities are created, in particular, to engage in drug trafficking. The very fact of organizing or leading a criminal community, as well as participation in it, entails criminal liability.
A new form of criminal community is the organization or participation in illegal armed groups, which means both an organization of similar formations, i.e. the organization of armed associations, the formation of squads, and deliberate actions committed within them. At the same time, criminal liability increases for intentional actions committed as part of illegal groups if they resulted in the death of people.
Types of accomplices. Depending on the nature of the actions, accomplices are divided into performer, organizer, instigator and accomplice.
Performer a person who directly committed a crime or directly participated in its commission together with other persons is recognized.
Organizer – This is a person who organized the commission of a crime or supervised its commission, as well as a person who created an organized group or criminal community, or supervised them.
Instigator is considered to be the one who, through persuasion, bribery, threat or other means, persuaded to commit a crime, i.e. caused in another person (the perpetrator) the determination to commit a specific crime.
Accomplice – a person who facilitated the commission of a crime by providing advice, instructions, providing appropriate means or removing obstacles to the implementation of the act; this is also the one who promised in advance to hide the criminals, tools, means and traces of the crime, objects obtained by criminal means.
Complicity in crime
Complicity in a crime is characterized by:
- objective signs;
- subjective signs.
Objective signs of complicity include:
- participation in the commission of the same crime by several persons. This sign shows:
- how many people are involved in committing the crime;
- that natural, sane persons participate in the commission of a crime, i.e. persons who are subjects of criminal law relations. If one of the two is a minor or insane, then this sign does not exist;
- joint actions of partners, which is manifested in the following:
- the crime is committed by the mutually complementary efforts of several persons;
- the criminal result is common to the accomplices;
- the criminal result is in a causal connection with the actions of each of the accomplices.
- awareness of the socially dangerous nature of one’s act;
- awareness of the socially dangerous nature of the actions of other accomplices;
- foreseeing the possibility of a single criminal result.
Two or more persons may participate in the commission of a crime, but they may not have joint interests, that is, each of them acts in his own interests.
Or there may be the opposite situation - there is jointness, but there are not two or more persons (for example, when a minor is involved in committing a crime together with an adult).
From the subjective side complicity is characterized only by intentional guilt. In this case, intent can be direct and indirect. The commission of a crime by accomplices and the joining of other persons in the criminal activities must also be intentional.
Intelligent trait intent of complicity includes:
Participation is only possible in crimes committed intentionally, it cannot exist in those committed through negligence.
The peculiarity of the subjective side of complicity is not only that the person acts intentionally, but also that he acts freely, that he is a sane person, that he has free will. If there is joint participation of two or more persons, but under physical or mental duress, then there is no complicity.
We can talk about complicity in the case when all participants in a particular crime have signs of a crime subject– sane individuals who have reached the age of criminal responsibility.
Forms of complicity is a structure of communication between two or more persons jointly committing an intentional crime.
The forms of participation are:
- simple complicity (co-execution, co-authorship) - characterized by the fact that all accomplices are performers;
- complex complicity - complicity with a division of roles.
- complicity without prior agreement;
- complicity by prior agreement;
- commission of a crime by an organized group;
- commission of a crime by a criminal community (criminal organization).
Types of complicity depending on the degree of cohesion of the partners:
The concept of complicity in crime
Key issues: the public danger of complicity in a crime; objective signs of complicity; subjective signs of complicity.
1. One of the most important areas in the implementation of criminal policy in Russia is the fight against organized crime and corruption. Every year, more than 35% of crimes in the country are committed in collaboration with organized criminal groups and criminal communities. These crimes, as a rule, are the most socially dangerous, daring, and are often committed with the use of weapons. Therefore, the new Criminal Code provides for a whole system of norms regulating liability for joint criminal activity (in the General and Special Parts).
The general concept of complicity is given in Art. 32 CC: this intentional joint participation two or more persons in committing deliberate crimes. This small legislative definition contains the necessary objective and subjective characteristics. Complicity is basic for constructing the concepts of the type of accomplices, forms of complicity, and the limits of responsibility of accomplices in a crime.
2. The objective side of complicity is characterized by quantitative and qualitative characteristics. Quantitative the sign means that complicity will take place if two or more persons participated in the commission of the crime. Moreover, it is necessary that each of these persons possess the characteristics of a subject of a crime, i.e. has reached the age at which criminal liability begins for a crime committed jointly, and has been sane. In the absence of any sign, one of the persons will not have complicity. For example, an adult involves a 13-year-old teenager in committing burglaries. In this case, complicity in the criminal legal sense does not arise.
Qualitative sign is the joint participation of persons who are the subject of the crime. Compatibility participation involves, first of all, the concerted actions of several persons. They join forces to commit a crime, complementing each other: one person induces other persons to commit theft, another makes the instruments of the crime, the third, using these instruments, commits the theft.
Further, jointness presupposes the achievement of a single criminal result. Not the goal, but the result, since the goal of each accomplice may be different. Thus, the customer of a murder for hire has the goal of eliminating a business competitor, and the perpetrator has the goal of receiving a certain amount of money. But there is only one criminal result - the death of the victim.
And, finally, joint participation will be when the combined concerted acts and a single criminal result are in a causal relationship. The basic requirements for causality, discussed in § 3 of Ch. VII textbook, also apply to causation in relation to complicity. But it should be borne in mind that in the causal connection between the actions of the organizer, instigator, accomplice and the single criminal result there is an additional link - acts of the performer. Therefore, the diagram of the objective side of complicity can be presented as follows.
The specificity of the objective side of complicity, the peculiarities of the development of a causal relationship create the possibility of inclusion in joint criminal activity at any stage, but until the perpetrator completes the crime. This position has great value for the correct classification of crimes, especially for theft from protected areas. Difficulties often arise when assessing the actions of security workers who allowed valuable property to be removed from the territory.
For example, Rakitin and Filipenko brought bricks to the territory of a sheepskin and fur factory. After unloading the car, they, taking advantage of the lack of control of the storekeeper of the finished products warehouse, stole five sheepskin coats and hid them in the back under a tarpaulin. But at the entrance guard Yudin discovered the stolen goods. Then Rakitin offered him money in the amount of the cost of one sheepskin coat. The security guard took the money and let the car through.
The question arises whether the security guard’s actions can be considered complicity in a crime. If the theft of sheepskin coats is considered completed from the moment of removal from the warehouse and hiding in the car, then there can be no complicity. If theft from a protected area is considered completed from the moment the stolen property is taken outside its boundaries, then there is complicity. In judicial practice, they adhere to the second opinion. Consequently, the security guard Yudin is subject to criminal liability as an accomplice in the theft of sheepskin coats.
Thus, jointness with complicity is coordinated interrelated acts, a single criminal result and a causal relationship between them.
3. When determining the subjective signs of complicity, the legislator took into account the complicated nature of the joint commission of a crime. And for their uniform understanding, he twice named the possible form of guilt. Complicity is deliberate joint participation of two or more persons in committing deliberate crimes. Consequently, the law establishes, first of all, that each person is included in a joint criminal activity intentionally. It realizes that it is acting together with other participants in the crime. Thus, an accomplice, making a cast of keys to someone else’s apartment, is aware that the perpetrator will use them to enter the apartment in order to commit theft. The contractor, in turn, realizes that a specific person is assisting him in committing the theft by making keys. Similar mutual awareness is a necessary subjective sign of complicity. This, however, does not mean that the perpetrator must know about the actions of all accomplices: the organizer, the instigator, the accomplice. After all, numerous branched criminal organizations are often created, even with international connections. And it is impossible for an individual accomplice to know about all the persons. Therefore, the theory of criminal law and judicial practice recognize that mutual awareness of at least two links from this organization is sufficient. Thus, a hired killer receives an order to kill a specific person and a reward from an intermediary. He is aware of his actions, but does not know the customer. In such a situation, the contractor may be separated from the customer by several intermediate links. But complicity occurs because there is mutual awareness. And when the perpetrator commits a murder, the customer distant from him is recognized as an accomplice.
Having established the intentional nature of joint participation, the criminal law further emphasizes that it is possible only in an intentional crime. There can be no complicity in a reckless crime.
Thus, the purpose of the institution of complicity in criminal law is as follows:
a) identify and characterize acts that are not included in the Special Part of the Criminal Code, but are organically related to specific crimes and therefore pose a public danger;
b) determine the rules for qualifying the acts of an organizer, instigator, or accomplice;
c) establish the limits of criminal liability for these acts;
d) provide additional criteria for imposing punishment on accomplices of a crime.www.konspekt.biz
The concept and meaning of complicity in Russian criminal law
According to Art. 32 CC complicity in crime The intentional joint participation of two or more persons in the commission of an intentional crime is recognized.
The joint criminal actions of accomplices, as a rule, increases the social danger of the crime. Therefore, in accordance with paragraph “c” of Part I of Art. 63 of the Criminal Code, an aggravating circumstance when assigning punishment is the commission of a crime as part of a group of persons, a group of people by prior conspiracy, an organized group or a criminal community (criminal organization).
The Criminal Code provides for elements in which the commission of a crime as part of a group of persons, a group of persons by prior conspiracy or an organized group is taken into account as qualifying criteria (clause “g”, part 2 of article 105, clause “a”, part 3 of art. 111, paragraph “d”, part 2 of article 112, paragraph “b”, part 2 of article 131, etc., and the commission of a crime by an organized group or criminal community (criminal organization) - as a special qualifying feature (paragraph “a” part 3 of article 126, part “c” of part 3 of article 127 1, part 3 of article 127 2, paragraph “a” of part 4 of article 158, Part 4 of Article 160, etc.).
Judicial practice, however, indicates that The role and contribution of individual accomplices in the joint commission of a criminal act is far from the same. Among them are the organizers, the most active participants in the commission of a crime, as well as persons who were participants in the crime due to random circumstances. Therefore, each accomplice bears responsibility for a jointly committed crime in strict accordance with his individual role and guilt in committing the crime.
Complicity is characterized by certain objective and subjective characteristics. Its objective features are the participation in a crime of two or more persons and the joint activity of their activities. Complicity presupposes participation in the commission of a deliberate crime by at least two persons. The condition for its existence is that each accomplice reaches the age at which criminal liability begins (Article 20 of the Criminal Code) and their sanity (Articles 19 and 22 of the Criminal Code).
A mandatory objective sign of complicity is compatibility their commission of a crime. When defining the concept of complicity in Art. 32 of the Criminal Code directly indicates the joint participation of two or more persons in the commission of an intentional crime. The criminal result is achieved through the combined efforts of these individuals. The above means that the actions of all participants are in a causal relationship with the given result.
The contribution of accomplices to a crime in achieving a criminal result is, as a rule, different. In paragraph 2 of paragraph 10 of the Resolution of the PVS of the Russian Federation of January 27, 1999 No. 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” it is explained that murder is recognized as committed by a group of persons when two or more persons, acting together with intent to commit murder, directly participated in the process of taking the life of the victim, using violence against him, and it is not necessary that the damage leading to death was caused by each of them.
From the subjective side, the actions (inaction) of the accomplices are characterized by intentional guilt. When characterizing the concept of complicity in Art. 32 of the Criminal Code directly refers to deliberate joint participation of two or more persons in the commission of an intentional crime. The intent of each accomplice is primarily characterized by his awareness of the social danger of the actions he commits and the compatibility of their commission with other accomplices. All accomplices are aware that through their actions they make a certain contribution to the achievement of a criminal result. From the point of view of the volitional, each accomplice wants to commit criminal acts together with other persons and the occurrence of a criminal result, or, although he does not want it, he consciously allows it or is indifferent to it.
As a rule, complicity is characterized by direct intent. However, complicity is also possible in the presence of indirect intent, when one or another accomplice, realizing the social danger of the act being committed and foreseeing its socially dangerous consequences, does not want them, but consciously allows them or is indifferent to them.
Accomplices may be guided by different motives and goals. If, when describing the elements of a crime in an article of the Criminal Code, the motive and purpose are not indicated, the discrepancy between the motives and goals of the accomplices does not affect the qualifications of the crime. When the article of the Special Part of the Criminal Code indicates the purpose and motive of a crime, only those of them who knew about the presence of these motives and goals in jointly committing a crime and consciously contributed to their implementation can be recognized as accomplices.
When committing a crime through negligence complicity is impossible. There is no complicity when a person negligently assists another person in committing a crime, since in this case there is no joint commission of an intentional crime by these persons.
The question of the subjective connection between the perpetrator of the crime and other accomplices remains debatable. Some authors believe that the absence of a two-way subjective connection between the performer and other accomplices does not exclude complicity. However, this scientific position is not consistent with Art. 32 of the Criminal Code, according to which complicity is the deliberate joint participation of two or more persons in the commission of an intentional crime.
Forms and types of complicity
In the science of criminal law, the question of the forms and types of complicity is resolved ambiguously. Depending on the nature and degree of actual participation of each accomplice in the commission of a crime, the Criminal Code distinguishes two main forms of participation: co-execution and complicity with the performance of various roles.
Co-performer is a form of complicity in which two or more persons, in whole or in part, by their actions (inaction) directly fulfill the objective side of the crime being committed. In this case, each of the persons participating in the joint commission of a crime is recognized as a perpetrator (co-perpetrator) of this crime. From the objective side each of the co-perpetrators commits actions (inaction) containing signs of the same crime. Moreover, each co-perpetrator performs the objective side together with other accomplices in the crime.
From the subjective side co-execution presupposes the awareness of each accomplice that the criminal intention is being realized jointly with the other accomplice(s). In cases of co-execution, often one of the accomplices objective side fulfills the crime committed jointly only partially. The above is typical when committing crimes, the objective side of which is made up of seemingly different actions of accomplices, which together constitute the composition of one and the same crime. In case of rape, for example, one of the co-perpetrators may commit a violent sexual act, and the other may facilitate this by physically overcoming the victim’s resistance.
Types of co-execution within the meaning of Art. 35 of the Criminal Code are the commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group and a criminal community (criminal organization).
Participation with distribution of roles of accomplices characterized by the fact that the perpetrator directly commits actions that constitute the objective side of the crime, and other accomplices - the instigator, organizer and accomplice, through their actions, create the conditions for him to successfully commit a crime or facilitate his implementation of the criminal intention. With this form of complicity, its participants play different roles in a joint criminal act (it involves the perpetrator and the instigator, the organizer, the accomplice and the perpetrator, etc.).
Complicity in crime
Complicity- is the intentional participation of two or more persons in the commission of an intentional crime.
This is the participation of two or more persons who are subjects of a crime, that is, who have reached the age of criminal responsibility and are sane, otherwise we cannot speak of complicity. There are cases when minors and mentally ill people are used as direct perpetrators of a crime, knowing in advance that they are not the subjects of a crime and are not subject to criminal liability. In this case, the person who uses them as a living instrument of a crime will be liable as the perpetrator of the crime.
The actions of the perpetrators must be joint, aimed at one goal, complementary to each other. Therefore, complicity is possible until the end of the crime, since it is impossible to help achieve the goal if it has already been achieved and the crime has been committed. If persons participate in the same attack, but they have different goals, then we cannot talk about complicity. There are situations when criminals do not have an agreement on joint actions. For example, walking past the broken door of the apartment, B. saw K. putting things into a bag. Without saying a word, B. entered the apartment and took several valuable items. B. and K. in this case will be qualified as perpetrators of individual crimes, but not as accomplices.
There must be intent to commit a socially dangerous act together with others.
Depending on the nature and degree (role) of participation in a joint crime, the following can be determined: [[types of accomplices]] (Fig. 1).
Rice. 1. Types of accomplices
Performer - a person who directly committed a crime through his actions or directly participated in the commission of a crime together with other persons - co-perpetrators. Co-performers can perform both identical actions (group fight, for example) and separate functions (one holds the victim by the hands, the other stabs him with a knife).
Organizer - a person who organized a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them. This figure is the most dangerous, since she involves other persons in criminal activities, directs their actions, and introduces organization and system into their activities. Organizing a crime is finding and preparing the perpetrator, accomplices, distributing roles, drawing up a plan, finding the instruments and means of the crime. Directing the commission of a crime is the distribution of responsibilities, giving mandatory instructions to the perpetrator and accomplices, active leadership in the crime. Sometimes the organizer can also be a co-perpetrator of the crime.
Instigator - is a person who induces another person to commit a crime. The instigator, through his actions, does not directly participate in the commission of a crime, does not organize or direct the crime, otherwise he would be the perpetrator and organizer of the crime, respectively. The instigator only arouses in another person the determination to commit a crime, and not a crime in general, but some specific crime (kill a certain person, steal a car). The instigator can use various ways and means: tricks, threats, promises, persuasion - that is, to perform any active actions that incline to commit a criminal offense. The motives and goals of the instigator and the perpetrator may be different, the main thing is that the instigator understands that he is involving a person in committing a socially dangerous act.
Accomplice - this is a person who facilitated the commission of a crime with advice, instructions, provision of funds or the removal of obstacles, as well as a person who promised in advance to hide the criminal, instruments and means of committing a crime, traces of a crime or objects obtained by criminal means, as well as a person who promised in advance to acquire or sell such items. The accomplice must fulfill his functions before the start or at the time of execution of the crime, but always before the actual completion of the crime, otherwise it will no longer be complicity, but involvement in the crime (not previously promised concealment, failure to report), since complicity is participation in the commission of a crime, the actions of the accomplice must contribute to the criminal outcome. The accomplice must be aware that he is facilitating the commission of a crime and foresee the consequences of the crime. The accomplice does not organize the crime, does not directly participate in the commission of the crime, otherwise he will be the organizer and perpetrator. Aiding with advice, instructions, or a promise to shelter a criminal strengthens the resolve of a person who has already planned a crime, rather than causing this determination, otherwise these actions will be qualified as incitement.
The criminal law does not provide special grounds responsibility for complicity, therefore, the punishment is determined by the limits of punishment provided for in the article of the Criminal Code of the Russian Federation governing the responsibility of the performer. In other words, the law does not provide for either more severe or lenient punishment for accomplices, but establishes a requirement according to which the responsibility of accomplices is determined by the nature and degree of actual participation of each of them in the commission of a crime, and their significance in the commission of the act. Therefore, the organizer and instigator usually receive a more severe punishment, while the accomplice, due to the auxiliary nature of his functions, receives a more lenient one.
An accomplice is responsible only for those actions that he foresaw, which were covered by his intent. Let's explain this with an example. During the burglary process, A. directly carried out the theft of property, and B. stood below and watched to see if the owners would appear. Suddenly the owner enters the apartment, who after a while ends up killed by the direct perpetrator. But B. did not foresee this scenario, he did not give A.’s consent to such actions. Therefore, A.’s actions will be qualified as premeditated murder combined with attempted theft, and B.’s actions will be qualified as complicity in attempted theft.
COMPLICITY IN A CRIME
Concept, signs and meaning of complicity in crime
Complicity in crime- this is the joint intentional participation of two or more persons in the commission of an intentional crime (see Article 32 of the Criminal Code).
Signs complicity can be objective and subjective.
Objective signs, in turn, are divided into quantitative (participation in a crime of two or more persons) and qualitative. Among the quality features are:
o joint participation, i.e. mutual conditioning of the behavior of each of the participants, who know [and do not assume] that they are carrying out criminal behavior together by mutual consent. For example, one participant in a crime uses master keys to open the door to someone else’s apartment, and the second participant removes valuables from the apartment;
o the unity of the criminal result, towards which the actions (inaction) of all participants are aimed. In the above example, the actions of both persons are aimed at a single criminal result - to take possession of someone else’s property;
o the presence of a cause-and-effect relationship between the socially dangerous behavior of each participant in the crime and the resulting criminal consequence. In other words, the behavior of each person [all persons] represents the conditions that together form the cause of the occurrence of a single criminal result;
o possession of all the characteristics of the subject of a criminal attack by each of its participants. If one of the two participants in the crime is insane or has not reached the age of criminal responsibility, then there is no complicity and it is necessary to talk about the method of extending the arms [indirectly causing harm] to the person brought to criminal responsibility.
Previously, exceptions to this rule were joint socially dangerous acts, expressed in rape by a group of persons, robbery or robbery by a group of persons by prior conspiracy. Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery” returned to general rule(see paragraph 12). General rule reflected in paragraph. 5 clause 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 02/01/2011 No. 1 “On the judicial practice of applying legislation regulating the specifics of criminal liability and punishment of minors.” Along with this, the Presidium of the Supreme Court of the Russian Federation in its decisions No. 1048 and 2000 pr in the case of Timirkaev et al.; No. 740 p. 99 in the Stepanov case stated the following: “A crime is recognized as committed by a group of persons by prior conspiracy if it was attended by persons who agreed in advance to commit it jointly, regardless of the fact that some of the participants were not brought to criminal responsibility due to failure to achieve age of criminal responsibility or due to insanity.” However, it is difficult, if not impossible, to imagine a prior conspiracy to commit a crime with an insane person.
Subjective signs of complicity are as follows:
o the desire to commit and the commission of intentional and concerted criminal behavior by each participant. There must be a two-way (multilateral) subjective connection between the accomplices in the crime. If one of the participants is in good faith mistaken in committing criminal behavior (believes that he is acting lawfully), then there can be no complicity. For example, one person gives the keys to a certain (supposedly his own) apartment to another person and asks to bring a valuable thing from this apartment. The other, conscientiously believing that the valuable thing belongs to the first one, removes it from the apartment and brings it to him, completely unaware of the theft committed;
o the intentional nature of a single crime committed by all participants. In crimes committed through negligence, there can be no complicity, since conspiracy to commit a crime through negligence is impossible;
o conspiracy aimed at committing a crime and indicating the consistency of the criminal behavior of the accomplices.
Conspiracy to commit an intentional crime may arise in advance of its commission or at the time of commission of the crime. The most typical type of complicity is a conspiracy that took place before the crime was committed. At the time of commission of a crime, conspiracy may arise, for example, in the case of personal injury. So, P., while on the dance floor, saw that P. had started a fight and was beating a certain S., whom P. hated. Then P. immediately decided to take part in the beating of S., whose health as a result suffered serious harm. As you can see, there is internal unity to commit a common crime between paragraphs and II. arose immediately at the time of the commission of the crime.
Complicity in the commission of a crime has an important criminal law meaning , it:
→ increases the degree of public danger of the crime, since several persons jointly cause more harm than one person;
→ gives a more severe nature to the social danger of crime, since complicity is inherent only in intentional criminal acts;
→ makes it easier to commit a crime and hide its traces, since it is easier for several people to implement a criminal plan and hide the traces of a crime than for one person;
→ influences the qualification of an act as a crime. In addition to the article of the Special Part of the Criminal Code, there may be a link to Art. 33 of the Criminal Code, if we are talking about complex complicity - there is organization of a crime (Part 3), incitement to it (Part 4) or complicity in it (Part 5);
o can become a constructive (see Art. 209, 210 of the Criminal Code) or qualifying, especially qualifying (see paragraph “a” part 2 or paragraph “a” part 4 of article 158 of the Criminal Code) sign of a crime, as well as an aggravating circumstance (see paragraph “c” of Part 1 of Article 63 of the Criminal Code), thus aggravating criminal liability.
According to Art. 32 CC complicity in crime The intentional joint participation of two or more persons in the commission of an intentional crime is recognized.
The joint criminal actions of accomplices, as a rule, increases the social danger of the crime. Therefore, in accordance with paragraph “c” of Part I of Art. 63 of the Criminal Code, an aggravating circumstance when assigning punishment is the commission of a crime as part of a group of persons, a group of people by prior conspiracy, an organized group or a criminal community (criminal organization).
The Criminal Code provides for compositions in which, as part of a group of persons, a group of persons by prior conspiracy or an organized group, it is taken into account as qualifying characteristics (clause “g”, part 2 of article 105, clause “a”, part 3 of article 111, clause “d”, part 2 of article 112, clause “b”, part 2 of article 131, etc., and the commission of a crime by an organized group or criminal community (criminal organization) - as a special qualifying feature (clause “a”) » part 3 of article 126, part 3 of article 127, paragraph “c” of part 3 of article 127 1, part 3 of article 127 2, paragraph “a” of part 4 of article 158, part 4 art. 160, etc.).
Judicial practice, however, indicates that The role and contribution of individual accomplices in the joint commission of a criminal act is far from the same. Among them are the organizers, the most active participants in the commission of a crime, as well as persons who were participants in the crime due to random circumstances. Therefore, each accomplice bears responsibility for a jointly committed crime in strict accordance with his individual role and guilt in committing the crime.
Complicity is characterized by certain objective and subjective characteristics. Its objective features are the participation in a crime of two or more persons and the joint activity of their activities. Complicity presupposes participation in the commission of a deliberate crime by at least two persons. The condition for its existence is that each accomplice reaches the age at which criminal liability begins (Article 20 of the Criminal Code) and their sanity (Articles 19 and 22 of the Criminal Code).
A mandatory objective sign of complicity is compatibility their commission of a crime. When defining the concept of complicity in Art. 32 of the Criminal Code directly indicates the joint participation of two or more persons in the commission of an intentional crime. The criminal result is achieved through the combined efforts of these individuals. The above means that the actions of all participants are in a causal relationship with the given result.
The contribution of accomplices to a crime in achieving a criminal result is, as a rule, different. In paragraph 2 of paragraph 10 of the Resolution of the PVS of the Russian Federation of January 27, 1999 No. 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)” it is explained that murder is recognized as committed by a group of persons when two or more persons, acting together with intent to commit murder, directly participated in the process of taking the life of the victim, using violence against him, and it is not necessary that the damage leading to death was caused by each of them.
From the subjective side, the actions (inaction) of the accomplices are characterized by intentional guilt. When characterizing the concept of complicity in Art. 32 of the Criminal Code directly refers to deliberate joint participation of two or more persons in the commission of an intentional crime. The intent of each accomplice is primarily characterized by his awareness of the social danger of the actions he commits and the compatibility of their commission with other accomplices. All accomplices are aware that through their actions they make a certain contribution to the achievement of a criminal result. From the point of view of the volitional, each accomplice wants to commit criminal acts together with other persons and the occurrence of a criminal result, or, although he does not want it, he consciously allows it or is indifferent to it.
As a rule, complicity is characterized by . However, complicity is also possible in the presence of indirect intent, when one or another accomplice, realizing the social danger of the act being committed and foreseeing its socially dangerous consequences, does not want them, but consciously allows them or is indifferent to them.
Accomplices may be guided by different motives and goals. If, when describing the elements of a crime in an article of the Criminal Code, the motive and purpose are not indicated, the discrepancy between the motives and goals of the accomplices does not affect the qualifications of the crime. When the article of the Special Part of the Criminal Code indicates the purpose and motive of a crime, only those of them who knew about the presence of these motives and goals in jointly committing a crime and consciously contributed to their implementation can be recognized as accomplices.
When committing a crime complicity is impossible. There is no complicity when a person negligently assists another person in committing a crime, since in this case there is no joint commission of an intentional crime by these persons.
The question of the subjective connection between the perpetrator of the crime and other accomplices remains debatable. Some authors believe that the absence of a two-way subjective connection between the performer and other accomplices does not exclude complicity. However, this scientific position is not consistent with Art. 32 of the Criminal Code, according to which complicity is the deliberate joint participation of two or more persons in the commission of an intentional crime.
Forms and types of complicity
In the science of criminal law, the question of the forms and types of complicity is resolved ambiguously. Depending on the nature and degree of actual participation of each accomplice in the commission of a crime, the Criminal Code distinguishes two main forms of participation: co-execution and complicity with the performance of various roles.
Co-performer is a form of complicity in which two or more persons, in whole or in part, by their actions (inaction) directly fulfill the objective side of the crime being committed. In this case, each of the persons participating in the joint commission of a crime is recognized as a perpetrator (co-perpetrator) of this crime. From the objective side each of the co-perpetrators commits actions (inaction) containing signs of the same crime. Moreover, each co-perpetrator performs the objective side together with other accomplices in the crime.
From the subjective side co-execution presupposes the awareness of each accomplice that the criminal intention is being realized jointly with the other accomplice(s). In cases of co-execution, often one of the accomplices objective side fulfills the crime committed jointly only partially. The above is typical when committing crimes, the objective side of which is made up of seemingly different actions of accomplices, which together constitute the composition of one and the same crime. In case of rape, for example, one of the co-perpetrators may commit a violent sexual act, and the other may facilitate this by physically overcoming the victim’s resistance.
Types of co-execution within the meaning of Art. 35 of the Criminal Code are the commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group and a criminal community (criminal organization).
Participation with distribution of roles of accomplices characterized by the fact that the perpetrator directly commits actions that constitute the objective side of the crime, and other accomplices - the instigator, the organizer and the accomplice, through their actions, create the conditions for him to successfully commit a crime or make it easier for him to realize his criminal intention. With this form of complicity, its participants play different roles in a joint criminal act (it involves the perpetrator and the instigator, the organizer, the accomplice and the perpetrator, etc.).
Complicity in crime
Complicity is the intentional participation of two or more persons in the commission of an intentional crime.
This is the participation of two or more persons who are subjects of a crime, that is, who have reached the age of criminal responsibility and are sane, otherwise we cannot speak of complicity. There are cases when minors and mentally ill people are used as direct perpetrators of a crime, knowing in advance that they are not the subjects of a crime and are not subject to criminal liability. In this case, the person who uses them as a living instrument of a crime will be liable as the perpetrator of the crime.
The actions of the perpetrators must be joint, aimed at one goal, complementary to each other. Therefore, complicity is possible until the end of the crime, since it is impossible to help achieve the goal if it has already been achieved and the crime has been committed. If persons participate in the same attack, but they have different goals, then we cannot talk about complicity. There are situations when criminals do not have an agreement on joint actions. For example, walking past the broken door of the apartment, B. saw K. putting things into a bag. Without saying a word, B. entered the apartment and took several valuable items. B. and K. in this case will be qualified as perpetrators of individual crimes, but not as accomplices.
There must be intent to commit a socially dangerous act together with others.
Depending on the nature and degree (role) of participation in a joint crime, the following can be determined: [[types of accomplices]] (Fig. 1).
Rice. 1. Types of accomplices
Performer - a person who directly committed a crime through his actions or directly participated in the commission of a crime together with other persons - co-perpetrators. Co-performers can perform both identical actions (group fight, for example) and separate functions (one holds the victim by the hands, the other stabs him with a knife).
Organizer - a person who organized a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them. This figure is the most dangerous, since she involves other persons in criminal activities, directs their actions, and introduces organization and system into their activities. Organizing a crime is finding and preparing the perpetrator, accomplices, distributing roles, drawing up a plan, finding the instruments and means of the crime. Directing the commission of a crime is the distribution of responsibilities, giving mandatory instructions to the perpetrator and accomplices, active leadership in the crime. Sometimes the organizer can also be a co-perpetrator of the crime.
Instigator - is a person who induces another person to commit a crime. The instigator, through his actions, does not directly participate in the commission of a crime, does not organize or direct the crime, otherwise he would be the perpetrator and organizer of the crime, respectively. The instigator only arouses in another person the determination to commit a crime, and not a crime in general, but some specific crime (kill a certain person, steal a car). An instigator can use various methods and means: intimidation, threats, promises, persuasion - that is, perform any active actions that incline to commit a criminal offense. The motives and goals of the instigator and the perpetrator may be different, the main thing is that the instigator understands that he is involving a person in committing a socially dangerous act.
Accomplice - this is a person who facilitated the commission of a crime with advice, instructions, provision of funds or the removal of obstacles, as well as a person who promised in advance to hide the criminal, instruments and means of committing a crime, traces of a crime or objects obtained by criminal means, as well as a person who promised in advance to acquire or sell such items. The accomplice must fulfill his functions before the start or at the time of execution of the crime, but always before the actual completion of the crime, otherwise it will no longer be complicity, but involvement in the crime (not previously promised concealment, failure to report), since complicity is participation in the commission of a crime, the actions of the accomplice must contribute to the criminal outcome. The accomplice must be aware that he is facilitating the commission of a crime and foresee the consequences of the crime. The accomplice does not organize the crime, does not directly participate in the commission of the crime, otherwise he will be the organizer and perpetrator. Aiding with advice, instructions, or a promise to shelter a criminal strengthens the resolve of a person who has already planned a crime, rather than causing this determination, otherwise these actions will be qualified as incitement.
Does not provide any special reasons responsibility for complicity, therefore, it is determined by the limits of punishment provided for by the article of the Criminal Code of the Russian Federation governing the responsibility of the performer. In other words, the law does not provide for either more severe or lenient punishment for accomplices, but establishes a requirement according to which the responsibility of accomplices is determined by the nature and degree of actual participation of each of them in the commission of a crime, and their significance in the commission of the act. Therefore, the organizer and instigator usually receive a more severe punishment, while the accomplice, due to the auxiliary nature of his functions, receives a more lenient one.
An accomplice is responsible only for those actions that he foresaw, which were covered by his intent. Let's explain this with an example. During the burglary process, A. directly carried out the theft of property, and B. stood below and watched to see if the owners would appear. Suddenly the owner enters the apartment, who after a while ends up killed by the direct perpetrator. But B. did not foresee this scenario, he did not give A.’s consent to such actions. Therefore, A.’s actions will be qualified as premeditated murder combined with attempted theft, and B.’s actions will be qualified as complicity in attempted theft.
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