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concept "blackmail": legal aspect

First of all, we will notice, that the word ‘ blackmail ’ has come to Russian from French, not having undergone at loan of considerable changes. The French noun ‘ chantage ", in turn, is formed from a verb ‘ chanter" - to sing, eulogise.

The word ‘ chantage "in the French language is primary designated peche ou l'on fait du bruit pour chasser le poisson dans les filets (a way of fishing at which noise and shouts fish exhausted in a network) [Rivarol, 1827, p. 183]. Further on the basis of metaphorical carrying over by victims of blackmail began to consider not only fishes, but also the people who have appeared in the extremely unprofitable position. Modern value action d'extorquer de l'argent a quelqu'un en le menaςant de le diffamer
(Extortion of money under the threat ochernenija someone) has arisen in the middle of XIX century and has been fixed in the eighth edition of the dictionary of the French academy (1932-1935) [DAF, 1932-1935, p. 340]. During the same period the word has been borrowed in Russian as already in M.I.Mihelsona's made on a boundary XIX the Big sensible-phraseological dictionary and XX centuries there is a term "blackmail" in modern value extortion by means of threat to damage honour of another [Mihelson, 1896-1912, with. 1823].

The word ‘ blackmail ’ also has strongly located for a long time already in legal practice where it sinonimiziruetsja with extortion and is treated in the general view as the requirement to make any actions under the threat of exposure or disclosure of compromising data:

Threat of exposure, disclosure of dishonouring (often forged) information on purpose to achieve from blackmailed any certain acts. In criminal law of Russian Federation SH is means of fulfilment of crimes (instead of independent structure). E.g., in item 133 UK the Russian Federation “Compulsion to actions of sexual character” blackmail is one of ways of such compulsion, in item 240 blackmail - one of ways of involving in employment by prostitution, in item 302 blackmail - a way to force to evidence [BJUS, 2003, with. 804];

Blackmail, that is extortion of money and other services under ugrozoju messages to someone or in general data of the circumstances, able is destructive to affect honour, property or family calmness exposed to extortion [Horses, 1956, with. 457].

The blackmail institute originates with Criminal Ulozhenija 1903 though still in Cathedral Ulozhenii 1649 in item 186 such term as «poklepnye claims» which on sense is very close to blackmail [the Russian legislation was used, 1984, with. 226]. But nevertheless Criminal
Ulozhenie along with extortion (item 590) for the first time provided responsibility for blackmail in item 615.

Blackmail in Ulozhenii was understood as prompting of other person on purpose dostavlenija to itself or other persons of property, benefit, the right to property, involving in the unprofitable transaction under the threat of announcement of invented or other data about:

1) the shameful fact;

2) a crime;

3) the circumstances undermining the trading credit of the victim.

And blackmail, as well as extortion though admitted a crime against the property, but have been located they in different heads: blackmail in chapter 34 «About bankruptcy, usury and others punishable unconscientiousness on property», and extortion - in chapter 32 «About larceny, robbery and extortion» [In the same place].

The first Soviet criminal code of RSFSR in item 195 also defines 1922 blackmail as the extortion connected to threat to announce dishonouring suffered data or to inform the authorities on its illegal act (blackmail) [UK RSFSR, 1922].

The criminal code of RSFSR has defined blackmail as a version of extortion 1926 and understood as it the requirement of transfer of any property benefits or the right to property or fulfilment of any actions of property character on pain of violence over the person of the victim, announcement about it of dishonouring data or destruction of its property [UK RSFSR, 1926].

In the following criminal code of RSFSR was two articles devoted to extortion 1960: extortion state,

Public (item 95 UK RSFSR) and personal (item 148 UK RSFSR) property [Is resulted on: Tagiev, 2006, with. 65-66].

The retrospective analysis of the domestic criminal legislation on responsibility for blackmail has shown ambiguous understanding of blackmail in domestic criminal law during the different historical periods: blackmail was equated that to swindle, compulsion to a summer residence of obligations, to an extortion version.

«In the operating Russian criminal law blackmail is regulated mainly as a way of fulfilment of a crime which is necessary for considering as the act form. In these cases the act provided by article of Especial part UK the Russian Federation, represents the concrete version of blackmail defined by the maintenance of shown requirements. At the same time, in separate situations blackmail is fixed only as a component of the act forbidden by the law» [Ganchenko, 2013, with. 13].

It is necessary to notice, that, despite available legal experience of qualification of blackmail and a regulation of responsibility for it, researchers [Ganchenko, 2013] specify in a number of contradictions in the operating criminal legislation of the Russian Federation and prove necessity of its perfection regarding a criminally-legal regulation of responsibility for blackmail. Speech, in our opinion, goes about the account of other possible motives (besides mercenary) and, accordingly, other requirements (besides property) which can not be limited to material benefit at qualification of blackmail. Not interfering in sphere legislatively-legal relations and norms of judicial interpretation, nevertheless, we will specify in evidence of expansion of the maintenance of the given concept considered at level of a legal picture of the world, and necessity of updating of its definition for the future.

The analysis of juridichesko-legislative aspect of blackmail allows to draw a conclusion, that one of the basic and integral characteristics of blackmail is presence of the certain (property) requirement,
Which obligatory sign is protivopravnost, and the maintenance of this requirement is caused prevailing mercenary, connected with material benefit, interest of the subject of a crime.

Important the conclusion also is, that in legal sphere blackmail is unequivocally regarded as criminal or illegal communicative action, reflexion of that can be found out in some lexicographic articles «a crime consisting in threat of exposure, punishment of relatives, disclosure dishonouring, often fabricated, data for the purpose of reception of personal benefit» [OIE, 2002, with. 322]; «the crime, consists in threat of exposure, punishment of relatives, disclosure of dishonouring, often forged data on purpose to achieve any benefits» [BES, 1997, with. 537].

From the resulted definitions also becomes obvious, that the legal treatment of blackmail means compulsion of the person to favourable to the subject of blackmail to the behaviour, made by means of threat of distribution of undesirable data to publicity. Undoubtedly, that blackmail closely also is organically connected with threat which, along with the requirement, makes a basis of qualification of blackmail as penal act. In other words, both blackmail, and threat are illegal actions and are considered as criminal (speech) actions.

«From the legal point of view threat falls under action of the Criminal and Civil Code of Russia. With reference to the Criminal code of Russia, at least, in five cases threat represents itself as directly act is a threat by murder (item 119 UK the Russian Federation), threat as alternative action in terrorism (item 205 UK the Russian Federation), threat in connection with realisation of justice or manufacture of preliminary investigation (ch. 1, 2 items 296 UK the Russian Federation), threat by violence concerning the representative of the power (ch. 1 items 318 UK the Russian Federation) and threat of application of violence at disorganisation of activity of the establishments providing isolation from
Societies (item 321 UK the Russian Federation). The threat connected with drawing of moral harm, is regulated item 151 of the Civil Code of the Russian Federation «Indemnification of moral harm» [Radbil, JUmatov, 2015, c. 109].

Having addressed to the comparative analysis of definitions of concepts "blackmail" and "threat" in their legal interpretation, we can say that as an integrated sign of the given concepts presence semy ‘ illegality acts, protivopravnost ’.

Threat can be treated as illegal verbal and (or) nonverbal action or to represent independent structure of a crime at performance of certain conditions: high level of danger, violence presence, drawing of material harm:

In the right verbally, in writing or in another way expressed intention to do physical, material or other harm to any person or public interests; one of kinds of mental violence over the person. In criminal law threat represents a way of instigation, finishing before suicide (item 110 UK the Russian Federation), involving of a minor crime to fulfilment (item 150 UK the Russian Federation), illegal reception of the data making commercial or bank secret (item 183 UK the Russian Federation) and fulfilment of other crimes. Threat by violence application is also a qualifying sign of numbers of structures of crimes. Threat by murder or causing of heavy harm to health represents independent structure of a crime (item 119 UK the Russian Federation) [BJUS, 2003, with. 404];

Threat - the intention stated in any form to do physical, material either other harm public or to personal interests. The most dangerous kinds of threat murder, drawing of heavy physical injuries or property destruction form special structures of a crime and are punished in a criminal order [PN, 2016, with. 201].

The close interrelation of threat and blackmail is represented obvious as threat acts as a direct lever on the addressee of blackmail.

Let's pay attention, that in cases when it is a question of blackmail, concrete threat of exposure, disclosure, promulgation of any certain undesirable information is mentioned, that is the threat maintenance correlates with verbal action, or, in other words, character of the maintenance of threats in blackmail differs from the threats focused for other ways of achievement of criminal results.

In particular, K.I.Brinev, analyzing jurislingvistichesky aspect of threat, specifies in following kinds propozitsionalnogo maintenances of the statements entering into the speech certificate of threat, and ascertainings of intentions speaking under condition of default listening its requirements:

1) the propositions containing the information on a life and health H-a, meaning two alternative action - threat by murder or threat of causing of heavy harm to health;

2) the propositions containing the information on distribution of the negative information on the person, irrespective of the validity and lozhnosti such information;

3) the propositions containing the information on application of violence in relation to object of threat (the basic structure of such crimes, as compulsion to withdrawal of bodies or fabrics of the person for transplantation, rape, violent actions of sexual character);

4) the propositions containing the information on destruction, damage or property withdrawal;

5) the propositions containing the information on fulfilment of explosions, arsons or other actions creating danger of  destruction of people, causing of a considerable property damage or approach of other socially dangerous consequences [Brinev, 2012, with. 165-166].

Let's specify, that intentions of the menacing subject practising blackmail, are connected with the propositions containing the information on distribution of negative data on the person, irrespective of the validity and lozhnosti such data.

If threat implementers can be as verbal (the notification someone, the publication of data), and physical (drawing uvechy, traumas) blackmail is realised verbally and means presence of any compromising evidence, i.e. any dishonouring data blackening a victim. Thus the information can be true and false (fabricated) [BJUS, 2003, with. 405].

One more integrated sign of blackmail and threat as illegal actions is their sensibleness and purposefulness, them intentsija in the general view can be formulated as follows: to induce, force the addressee to execute certain actions.

otlichitelno line that fact will be important, that blackmail as illegal action always includes eksplitsirovannyj in a definition a component - instructions on a specific goal (in this case - extortion): «intimidation by threat of exposure or disclosure of any compromising data for the purpose of extortion» [BES, 1997, with. 538], i.e. the given communicative action always provides reception of any benefit by the blackmailer, thus the purposes can carry as personal character (financially enrichment, compulsion to certain actions), and public (political blackmail). We will notice, that in modern domestic linguistics and jurisprudence personal benefit is treated, how reception material or a property. In the European tradition performance by a victim of blackmail of certain acts can be meant by personal benefit [BJUS, 2003 also, with. 804]. The blackmail purpose in such cases considers extortion:

Extortion of money, property or the signature on the promissory note by the written or oral threat, dishonouring exposures or charges [SIS, 1911, with. 281];

Behaviour and acts unseemly, criminal, intimidation by threat of exposure or what-l disclosure. Compromising data for the purpose of extortion, and also in general threat, intimidation than-l. On purpose to create conditions favourable to [BTSRS, 2009, with. 697].

Contrary to blackmail, for concept "threat" the component ‘ purpose presence ’ is not concretised in entries, and in communications illokutivnaja the purpose can be eksplitsirovana or not:

The third group of potential victims of the conflict includes the people preferring in any conflict situation at once, as they say, «peret a drill», «to take glotkoj» — that is immediately to pass to insults, threats, to rough discharging actions on purpose to suppress, intimidate the opponent (the Criminal conflict. Fighting art of a planet, 2004.03.11, NKRJA);

Poet-satirist N.Dikolaev has pestered critic U.Trehprudnomu, begging, demanding, promising and threatening that that has written the small foreword to its new book of satirical verses (N.Bogoslovsky. Hat marginal notes. NKRJA);

Interrogated on the substance of the certificate chief ZHKO z-yes Alexeys and working in its submission svid [etel] Radko have declared, that Beznosjuk, threatening with "the second Budapest», really expressed in anti-Soviet spirit, saying thus slander on the CPSU (O.Edelman. The Soviet people in holidays. NKRJA);

At the decision of a question on application as an imprisonment preventive punishment it is necessary to have authentic data that the accused can disappear from preliminary investigation or court bodies, to continue to be engaged in criminal activity, to threaten
To witnesses or other participants of criminal legal proceedings to destroy proofs or to others by to prevent manufacture on criminal case (D.Kalashnikov. Arrest - a measure exclusive. NKRJA).

We see, that the purpose component is present at first two examples and eksplitsitno is expressed in speech. In two last examples it is not found out eksplitsitno the expressed purpose of threat.

Bringing intermediate results, we can notice, that blackmail as a legal phenomenon assumes a combination of two basic signs: threat of disclosure of the negative information (compromising evidence) and the subsequent extortion of material assets. For threat in legal aspect two following components are designated: obviously expressed intention and potential drawing of heavy harm to a victim.

In their legal understanding it is possible to present intermediate results of the comparative analysis of blackmail and threat in the table № 1.

The table № 1.

Parity of signs of concepts "blackmail" and "threat"

In legal aspect

Signs Blackmail Threat
1. protivopravnost + +
2. Sensibleness, purposefulness + +
2.1. Presence eksplitsitno the expressed purpose of influence + +/-
3. The expression plan:
3.1. Verbally + +
3.2 neverbalno - +
4. The maintenance plan:

4.1. Physical tresspass possibility (physical violence, punishment, destruction) - +
4.2 Possibility of distribution of the information + +
4.2.1. Specific character

Information (compromising, confidential, concerning secrets protected by the law - state, commercial, private etc.)

+ + / -
5. Presence of material benefit + +/-

Thus, in narrow, legally legal sense of this word, blackmail means means of fulfilment of a crime - illegal compulsion of the person to behaviour favourable to the blackmailer by means of threat of distribution of data (compromising evidence) undesirable to publicity, disclosure of dishonouring (often forged) information.

However, as focus of our research attention concentrates on concept "blackmail" with reference to daily interpersonal communications further it is necessary to differentiate concepts «legal blackmail» and «household blackmail» (about it it will be a question in paragraph 2.3. The present chapter).

The reference to various lexicographic sources in search of blackmail definition has shown, that the circle of the phenomena which the term "blackmail" began to concern now has considerably extended. At a following investigation phase we will consider, to what diskursivnym to experts the term "blackmail" and what semantic signs today is applied are found out at the lexeme use ‘ blackmail ’ in a various syntagmatic environment.

2.2.

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A source: Nikodimova Anna Dmitrievna. BLACKMAIL AS the PHENOMENON of DESTRUCTIVE COMMUNICATIONS. The dissertation on competition of an academic status of a Cand.Phil.Sci. Volgograd - 2018. 2018

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