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§2. Concept of road and transport crimes and their place of system of the Special part of the Criminal code of the Russian Federation.

occurrence in UK the Russian Federation gl. 27 «Crimes against traffic safety i'ekspluatatsii transport» it is unconditional, it has been prepared by all previous development of the criminal legislation of Russia.
The name of the head speaks not about crimes in transport in general, but only about what are connected with traffic safety and transport operation. Therefore outside of gl. 27 UK there were some "transport" crimes having other object of the criminal trespass and other character of wrongful acts. It is a question of item 166 (wrongful occupancy by the car or other vehicle without the plunder purpose) and about item 211 (stealing of a vessel air or a sailing charter or a railway rolling stock). Basically these structures of crimes on the specificity - "transport" and in the criminal legislation of the various countries of the world the given structures of crimes on a number with others criminally-rules of law, defining otvetstven-nost for fulfilment of crimes in transport, have been consolidated in corresponding chapters of Criminal codes (UK Belarus, Bulgaria, Holland, the Peoples Republic of China, Latvia, Uzbekistan, Ukraine, Germany, Estonia).1 But in UK there are other structures of crimes where are mentioned both vehicles and transportation rules, however, also not included in gl. 27 UK the Russian Federation. It is item 218 UK the Russian Federation in which, in particular, it is spoken about infringement of rules of transportation explosive, inflammable and pyrotechnic 10 ' the Criminal code of Byelorussia. SPb., 2001; the Republic Bulgaria criminal code. SPb., 2001; The criminal code of Holland. SPb., 2001; the criminal code of the Peoples Republic of China. SPb., 2001; the criminal code of the Latvian republic. SPb., 2001; the Republic Uzbekistan criminal code. SPb., 2001; the criminal code of Ukraine. SPb., 2001; the criminal code of Germany. SPb., 2003; the criminal code of the Estonian republic. SPb., 2001. 39 Products, item 252 UK the Russian Federation in which various cases of criminal pollution of the sea environment from various sources in which number ^ dump from vehicles »is named and« are listed. Thus, in gl. 27 UK the Russian Federations have been included far not all crimes which are anyhow connected with vehicles. The basic criterion of "selection" of the crimes placed in this chapter, that circumstance was, that the come socially dangerous consequences consist in injury to health or a life of an uncertain circle of persons or causing of a large property damage by the not personified victim. Careless causing of such consequences grows out of infringement of safety rules of movement and (or) operation a trance - t Tailors of the means concerning sources of raised danger. At designing of the dispositions placed in gl. 27 structures of crimes have been made variety of innovations. Most essential of them should consider express indication on the fault form (item 263, 264, 266-269 UK the Russian Federation) which is defined by words: «act (infringement) has entailed causing on imprudence...» Or «the infringement (act) which has entailed on imprudence causing...». The Criminal law in a design of listed articles directly says that is crimes careless and qualification on ^ to these articles of the acts made with direct or eventual recklessness concerning come consequences is excluded.
It is necessary to notice, that the concept of "a road and transport crime» has not received still accurate definition in the theory of the Russian criminal law. Therefore and the terms framework with which different authors operate, is rather diverse and includes such concepts, as «criminal infringements of safety rules of movement and operation avtomototransporta and a city skogo electrotransport","motor transportation crimes","dorozhno - crimes in transport». ^. I.G.Malandin carries to motor transportation crimes «is made - noe the person on imprudence or deliberately socially dangerous action 40 RUSSIAN І ^sud,-RSTVSNNLJA Or the inactivity breaking safety rules движеінййій ї і kjpluata-tsii of means avtomototransporta both city electrotransport and leading to approach (or real possibility of approach) the heavy consequences specified in the law »with some updatings reproduces.1 This definition in the work and A.S.Kuzmin. V.V. Lukjanov, underlining known discrepancy of the term «motor transportation crimes» (it does not cover the crimes made with use of variety of other mechanical vehicles), and has suggested to enter into a scientific turn concept «road and transport crimes», i.e. offences which are expressed in guilty infringement of those or other rules concerning maintenance of traffic safety, and involve the criminal liability. Approximately as defines N.V.Jakubenko.4's road and transport crime V.I.Zhulev and SI. Girko to a road and transport crime carry «the perfect road and transport incident in which result there have come consequences is guilty, responsibility for which is provided by the Criminal code».5 Taking into account that in the criminal law there is no legal definition of road and transport crimes, in the criminal law theory it is necessary to recognise research of this problem justified. Studying of the given illegal acts at level of philosophical categories of the separate and individual promotes creation of the general approach to considered concept. Really, there was such situation, that any road and transport crime is simultaneously considered as road accident, fixed in a card of the account and enters a component in stati - 1 See: Malandin I.G.incident and offences on avtomototransporte and city electrotransport. Saratov, 1968. With. 106. 2 See: Kuzmin A.S.struggle with motor transportation crimes. Omsk, 1981. With. 15. 3 See: Lukjanov V.V. Problemy of qualification of road and transport crimes. M, 1979. С.16. 4 See: JAkubenko N.V.road and transport of a crime: essence, qualification, responsibility. Tyumen, 2001. With. 36-38. 5 See: Zhulev V. I, Girko SI. Responsibility of participants of traffic: the practical grant. M, 1997. With. 61. 41 sticheskie the data characterising position with level of maintenance of safety of traffic in the country. At the same time, certainly, that any road accident is far not "rises" to crime level. It is a question, first of all, of road accident with consequences below that level which is established for penal acts. Besides, on many facts of road accident even with heavy consequences in excitation of criminal cases refuses in connection with absence of event of crime or on the initiated criminal cases the decision on the termination of investigation in the absence of the corpus delicti is passed. For example, in case of arrival on the pedestrian it means, that infringement of Rules has been admitted by the victim, and the driver of infringements did not suppose. In the presence of all signs forming the corpus delicti, a question on presence in actions prospective guilty infringements of Rules also is in overwhelming majority of cases the core. The negative answer to this question attracts the criminal case termination. However, recently as the basis for the criminal case termination other circumstance - death of the person who are coming under to the criminal liability in increasing frequency acts. It, as a rule, those cases when the driver who admitted infringement of Rules and has made road accident with heavy consequences, perishes also itself. For neprivlechenie it as though "pays off" with own life. For definition of concept of road and transport crimes it is important to consider, that «these crimes encroach on public relations in sphere of safe functioning (movement and operation) vehicles. Safety of functioning of transport includes enough wide range of the public relations connected not only with realisation of trouble-free operation of vehicles, but also with protection of a life and health of the people, the valuable property, surrounding environment».1 1 See: Korobeev A.I.crime. SPb., 2003. With. 56, 57. 42 Naturally, such encroachments are made by infringement of the established safety rules of traffic and operation a trance - ~ Tailors of means. In the third chapter of our work we will consider the mechanism of fulfilment of road and transport crimes where we will draw a conclusion, that discriminating line of the given kind of crimes is presence of certain objective conditions (arising in the course of traffic) at which they occur. These objective conditions will be defined by us as «emergency conditions». Therefore at definition of concept of a road and transport crime it is not less important to consider and features of the mechanism of its fulfilment. So, in our opinion, the road and transport crime is the illegal socially dangerous act expressed in infringement of safety rules of traffic and operation of vehicles, made in the conditions of emergency conditions and entailed on imprudence the consequences provided by the criminal law. The statistics testifies, that road and transport crimes in the Russian Federation constitute 20-23 % in the general structure of criminality. On quantity indicators after criminal trespasses on sobstven - ^ nost and the person of infringement of the established safety rules of traffic are one of the most widespread criminal actions. Only for the period 1992-1996гг. In streets and country roads was lost more than 170 thousand persons. For the specified period the quantity of road and transport incidents because of drivers of the cars belonging mainly to physical persons annually increased. In 1996 relative density of such incidents has reached 55,1 %. Researchers of motor transportation breakdown susceptibility in the beginning of 1997 considered, that the next years growth of quantity of road and transport incidents and number of victims in them is possible ^ людей.1 1 See: Road and transport incidents in Russia (1996): the statistical collection. M, 1997. •43 The specified forecasts were justified. Since 1997 growth of relative indicators of breakdown susceptibility was marked and by 2000 the average of victims in ~ calculation on 100 thousand inhabitants has increased by 0,6 %, a death-roll on 100 road accidents - on 2,8 %, weight of consequences of incidents - on 2,9 %, quantity of road accident in races-couples on 10 thousand in km of extent of an ulichno-high system - on 2,3 %. 1 According to statistical data of Department of safety of traffic of the Ministry of Internal Affairs of Russia in 2004 naterritorii our country it has been made already more than 208 thousand road and transport incidents in which was lost 34,5 thousand, and have got wounds of various severity level 251 thousand person. Thus such indicators of breakdown susceptibility as the quantity of perfect road accidents and number of wounded men in them people became the highest for posled-nie 10 years. And by estimation the social and economic damage from road and transport incidents in 2004 has constituted more than 300 billion roubles. The number of the persons acquiring the right to management transport means mi, annually constitutes about 2 million persons. Quality of their preparation ostaet sja low - every third candidate does not hand over promotion examinations from the first, and it leads to that by not skilled drivers (with the experience of management to 2лет) is annually made over 20 thousand road accident. ^v the increasing prevalence is received by conscious default Requirements corrected participants of the traffic, expressed in management of vehicles of persons without a driving licence or not having a corresponding category. One more problem, while maloizuchennaja, but quite real. According to the foreign statistics, to 20 % of the detained persons operating vehicles, were under the influence of narcotic preparations. On - 1 See: Fedorov V. A. About a breakdown susceptibility condition on avtomototransporte in the Russian Federation and problems of the prevention to a rozhno-transport traumatism among the most vulnerable participants of traffic//STOP the newspaper. 2000. №6. S.Z. ijlr 2 According to the governmental order of the Russian Federation from June, 29th, 1995 № 647 «About the statement of Rules of the account to - Rozhno-transport incidents »the organisation and conducting the state statistical account of road and transport incidents are assigned to the State automobile inspection of the Ministry of Internal Affairs of Russia (Department of safety of traffic of the Ministry of Internal Affairs of Russia). 44 dobnaja the statistics in Russia is absent. However growth of a narcotism marked by much experts gives the bases to believe, that in the near future this problem will be actual and for Russia. Characterising a state of affairs under the prevention of breakdown susceptibility among the most vulnerable participants of traffic, it is necessary to recognise, that the organisation of work among the given category actually has dropped out of a field of vision of the subjects who are carrying out the activity in the field of maintenance of safety of traffic. It concerns, first of all, pedestrians. Annually because of their imprudence there is practically every third incident. On their share it is necessary to 40 % of victims and wounded men from the general number пострадавших.1 It is necessary to notice, that the given category of participants of traffic (pedestrians) has dropped out of a field of vision not only the bodies providing safety of traffic, but also investigating agencies. So, for example, in 1998 in the Eagle it has not been initiated any criminal case under item 268 UK the Russian Federation. It was possible to refer to that moment still, that the Criminal code of the Russian Federation has entered recently validity and consequently under item 268 UK investigatory practice has not been turned out the Russian Federation. Now changes there was no also it is characteristic not only for of the Eagle, but also for other regions of Russia, in particular, for the Voronezh area. Let's consider the general provisions characterising road and transport crimes, and also responsibility of participants of traffic for their fulfilment. Key structure from all gl. 27 UK in this aspect it is necessary to allocate the act provided by item 264 UK the Russian Federation «Infringement of rules of traffic and operation of vehicles». The maintenance of given article repeatedly underwent changes. According to Federal zako - 1 See: Fedorov V. A. About a breakdown susceptibility condition on avtomototransporte in the Russian Federation and problems of the prevention to a rozhno-transport traumatism among the most vulnerable participants of traffic//STOP the newspaper. 2000. №6. С.4. 2 Inquiry ITS the Department of Internal Affairs of the Oryol area about quantity of perfect crimes on to the Eagle for 1998г. 3 In 2002-2004 by investigating agencies of the Municipal Department of Internal Affairs of the Voronezh area it has not been initiated any criminal case under item 268 UK the Russian Federation concerning pedestrians. 45 nom the Russian Federation № 92-FZ from June, 25th, 1998 «About modification and additions in the Criminal code of the Russian Federation» 1 such sign as causing of a large damage has been excluded from a disposition of a part of 1 article 264 UK the Russian Federation. And the Federal act of the Russian Federation № 162-FZ from December, 8th, 2003 «About modification and additions in the Criminal code of the Russian Federation» dekriminali-ziroval causing on imprudence of average weight of harm to health of the person as a result of infringement of rules of traffic and operation transport средств.2 One of the basic concepts necessary for explanation of corpuses delicti, provided by item 264 UK the Russian Federation, is concept of the mechanical vehicle which driver in case of infringement of rules of traffic by it and operation admits the subject of the given crime. In a disposition criminally-rule of law, provided in ch. 1 items 264 UK the Russian Federation, are named the car, a tram and other mechanical vehicles, and in the note to this article is specified, that other mechanical vehicles are understood «as trolley buses, and also a tractor and other self-propelled cars, motorcycles and other mechanical vehicles». It is easy to notice, that, despite attempt to list typical vehicles in a disposition of article and the special note to it, the list is not settling. Moreover, the made legislative definition is obvious tavtologichno and mismatches rules of legislative technics. The question on the list of mechanical vehicles is a question on a circle of possible subjects of item 264 UK, and therefore he deserves detailed consideration. ^ ' About modification and additions in the Criminal code of the Russian Federation: feder. The law from June, 25th 1998 № 92-FZ//С3 the Russian Federation. 1998. № 26. Item 3012. 2 About modification and additions in the Criminal code of the Russian Federation: feder. The law from December, 8th, 2003 № 162-FZ IIСЗ the Russian Federation. 2003. № 50. Item 4848. 46 The federal act «About safety of traffic» from December, 10th, 1995 defines only "vehicles", and about mechanical * ^ vehicles does not mention and at all does not name the basic types of road vehicles. The fullest definition of concept "vehicle" with direct transfer of its types is given in Rules of the account of the road and transport incidents approved by the order of the Ministry of Internal Affairs of the Russian Federation № 2 from January, 3rd, 1996. So, to number of vehicles are carried: «the car, a motorcycle, a motor scooter, a motorised carriage, a moped, a bicycle with the pendant motor, motonarty, a tram, a trolley bus, a tractor, the self-propelled car, and also a cartage, except for pack and riding animals».2 By comparison of the list of mechanical vehicles, koto - F rye are named in the text of item 264 UK and in the note to it, with what prive - dyon in account Rules, attracts attention that fact, that in the first list unlike the second such mechanical vehicles, as a motor scooter, a motorised carriage, a moped, a bicycle with pendant dviga-telem and motonarty are not mentioned. Whether it is possible to consider, what these vehicles concern «other mechanical means» (the note to item 264 UK), and persons operating them can be considered as the perpetrators, provided ^ item 264 UK? Let's address to Rules of traffic Russian Федерации.3 the Term «a mechanical vehicle» the vehicle, except a moped, set in motion is defined by the engine in Rules, as «. The term extends on any tractors and self-propelled cars». ' About safety of traffic: feder. The law from December, 10th, 1995 № 196-FZ//SZ the Russian Federation. 1995. N ° 50. Item 4873. 2 concepts of "vehicle" Similar definition contained and in earlier operating (to 1 jan cooking 1996) Rules of the account of the road and transport incidents approved by the order of the Ministry of Internal Affairs of the USSR № 85 from April, 24th, 1984. 3 About Rules of traffic of the Russian Federation (together with «Substantive provisions under admission SHCH of vehicles to operation and duties of officials on safety maintenance dorozh nogo movements»): the Ministerial council decision - the Governments of the Russian Federation, 23 okt. 1993г. № 1090//SAAP the Russian Federation. 1993. №47. Item 4531. 47 Basic specification to this definition contains in the same Rules in definition of concept "moped" to which admits «two-or shch the three-wheeled vehicle set in motion by the engine with working volume no more 50 sm and having maximum constructive speed no more 50 km/hour. Bicycles are equated to mopeds with an outboard motor, motiki and other vehicles with similar characteristics». We will notice, that this norm is entered according to the United Nations Convention on traffic (Vienna, 1968) in which definition of concept of a bicycle with an outboard motor is made: «any of two-or the three-wheeled vehicle supplied with an internal combustion engine with volume of the cylinder, not exceeding 50 sm3 (3,05 cubic inches) and maximum a game-struktivnaja which speed does not exceed 50 km/hour (30 miles/hours)». The told allows to draw a conclusion that drivers of bicycles with an outboard motor, motorised carriages, motonart, mopeds and others samodvizhu - shchihsja mechanisms with volume of the engine less than 50 sm and constructive are fast stju less than 50 km/hour, the Russian Federations do not concern number of subjects of item 264 UK. For dopu shchennye infringements of rules of traffic and operation they (along with pedestrians, passengers, moving men, etc.) bear responsibility under item 268 UK the Russian Federation (infringement of the rules providing safe work of transport). w\Thus, to mechanical vehicles, about which go - vorit item 264 UK the Russian Federation, follows besides what are directly named in the criminal law (the text of article and the note to it) to carry and other mechanical vehicles in the understanding stated in Rules of traffic. From this the conclusion follows, that definition of concept of the mechanical vehicle existing now in the criminal law, formulated by transfer of its typical devices, is not absolutely successful as it does not reflect all konstitutivnyh data signs on-shch njatija. Also it would be more logical to define the general concept of a mechanical vehicle as subject of a considered crime. 48 To problem of definition of type of a vehicle and its conformity to the signs specified in item 264 UK the Russian Federation repeatedly the attention in the scientific literature was paid. So, attempt to expand the legal maintenance of the given concept has been undertaken by N.I.Pikurovym. He has suggested to understand as a vehicle «... Any self-propelled mechanical device having an independent control system, the engine in volume more than 50 sm3, possessing in the constructive speed more than 50 km/h, carrying out the basic or auxiliary function of moving of cargoes, the people, established not it of the equipment or performance of other works connected with traffic».1 In our opinion, for the purpose of reflexion in the given concept of the legal maintenance and all constructive signs it is expedient to legislator to take for a basis, with some changes, the definition offered by N.M.Svidlo-vym and A.S.Sentsovym: «the Mechanical vehicle is the device structurally intended for transportation of people, cargoes or the process equipment on the roads, equipped with own engine and a subject of obligatory registration in the state bodies, the order of movement and which operation is defined by traffic Rules, and on management the special permission - a driving licence or other diploma» is required. At the same time traffic Rules establish a uniform order of traffic «in all territory of the Russian Federation» (item 1.1). This requirement means, that action of Rules extends on territory of all Russia, and they come under to execution in all its regions within frontier. It also means, that Rules operate in any places where movement of vehicles is possible. It is a question of roads of any categories, about proselkah, "zimnikah" and others time or slu - 1 See: Pikurov N.I: Qualification of road and transport crimes: studies. The grant. Volgograd, 2001. With. 6. 2 See: Svidlov N.M., SentsovA.S. Qualification of stealings of vehicles. Volgograd, 1986. С.17. 49 Tea means of communication, and also about parking, industrial territories and т.п.1 Irrespective of a scene the question on qualification of actions of the guilty person under item 264 UK will be defined depending on, whether the vehicle participated in transportation of people or cargoes, towage or other transport operation, or did not participate. Therefore, in our opinion, as subject of a considered crime it is more expedient to present definition of the general concept of a mechanical vehicle in the following edition: «mechanical vehicles are understood as the devices structurally intended for transportation of people, cargoes, the process equipment or performance of other works connected with traffic, equipped with own engine and subjects of obligatory registration in the state bodies, the order of movement and which operation is defined by Rules of traffic of the Russian Federation, and on management of them the official permission» is required. The given edition reflects blanketnyj character of a disposition of item 264 UK the Russian Federation which is dictated by that changes of all complex of conditions of movement and motor transport operation inevitably cause constant changes of corresponding special rules of behaviour of the persons included in sphere of interaction with this type of transport. Any criminal law not in a condition to provide similar changes. Therefore also there is a necessity for norms with blanketnymi dispositions which contain such changing signs as special rules of behaviour in corresponding area of use of transport. «Blanketnaja the disposition, - correctly marks N.I.Pikurov, - allows to combine stability of the criminal law with efficiency of subordinate legislation normative acts, sensitively to react to changes in a public life».2 1 See: the Comment to Rules of traffic of the Russian Federation. M, 1996. С.9. 2 See: Pikurov N.I.application the inspector criminally-rules of law with blanketnymi dispositions. Volgo hailstones, 1985. With. 6. 50 It is necessary to notice, that there is a number of the circumstances excluding a liability of infringement of safety rules of movement and operation of vehicles. These circumstances are stated in account Rules where cases which do not join in the statistical reporting are listed, i.e. are not road accident. For example, the incidents which have arisen at carrying out of automobile and motorcycle sports actions, accompanied by accidents with participants, attendants and spectators of these actions. The special equipment of lines, an exception of movement of other transport, cancellation of restrictions of speed and action of other requirements of Rules condition, excluding these actions from traffic sphere in legal sense. However, when such conditions are not created also sports cars move in the general order, on their drivers requirements on observance of Rules of traffic extend. Do not come within the purview of item 264 UK and cases when incidents are a consequence of performance by vehicles of technological industrial operations. For example, at the cargo handling works which are carried out by tractors, at ploughing of the earth, harvest works, etc. The most simple for practical explanation and the most vulnerable in the theoretical plan are two elements of the analyzed corpus delicti - object and the objective party. Edition of a disposition of item 264 UK allows to draw a conclusion that the basic direct object of the considered criminal trespass is safety of functioning (movement and operation) all kinds of mechanical vehicles about which the Russian Federation is spoken in the note to item 264 UK. In the considered corpus delicti additional object is health of the person (ch. 1 items 264 UK the Russian Federation), a life (ch. 2 items 264 UK the Russian Federation), a life of two or more persons (ch. Z item 264 UK the Russian Federation). 1 About the statement of Rules of the account of road and transport incidents: the governmental order of the Russian Federation, on June, 29th 1995г. № 647//SZ the Russian Federation. 1995. № 28. Item 2681. 51 Especially difficult element of structure of a considered crime Its objective party which includes infringement of rules добі is w ' rozhnogo movement and operation of the vehicles, socially dangerous consequences, which approach attracts the criminal liability (causing of heavy harm to health or death victim) both a causal relationship between infringement and consequences. To the analysis of constituting elements and the most objective party as a whole we will address in the subsequent paragraphs of our work, now otme, that without understanding of the mechanism of fulfilment of road and transport incidents it is impossible to state an exact legal estimation to the objective party of road and transport crimes. All legally significant circumstances concerning conditions of traffic, influencing the mechanism of a road and transport crime, and especially on weight of the come socially dangerous consequences, should be established and investigated in the course of preliminary investigation and proceeding. First of all, it concerns character of infringements of safety rules of traffic and operation of mechanical vehicles. After all only in the presence of such infringements and their finding in a causal relationship with heavy consequences there comes the criminal liability of guilty persons. Even the drunk condition of the driver - the participant of road accident not always testifies that this driver is guilty in the happened. This condition should be transformed to the certain actions (inactivity) connected, for example, with excess of speed of movement, departure on a strip of counter movement, in transit on forbidding signal of a traffic light, etc., i.e. with those infringements which are the road accident reason. In road and transport incidents cases when the driver supposes infringement in the conditions of emergency are extended, trying Щ\to avoid approach of consequences in the extreme situation caused by actions of other driver, other participant of movement or confluence a case - 52 nyh circumstances. Happens and so, what the true originator of the incident who have created emergency conditions, itself remained safe or if it drive-? tel, the vehicle of any harm does not cause and neither collisions, nor arrival does not make. More that provoked by its actions other driver (other participant of movement) is forced to make deviations from requirements of rules, and its vehicle causes heavy consequences. To untangle similar "Gordian knots" of relationships of cause and effect and to establish a real original cause of road accident and the true originator of penal event happens rather difficult. Errors at qualification of acts The guilty persons, the developments caused by a wrong establishment причинім Ache communications, constitute to Х1Ъ from total cancelled and changed Sentences on road and transport преступлениям.1 As example of difficult development of relationships of cause and effect business K can serve in the road accident mechanism, the of Voronezh condemned by Railway regional court on ch also. 3 items 264 UK the Russian Federation. On 512 km. Motorways Moscow-Rostov the driver of car FA3-31029 K-n, at fulfilment of overtaking of car MAZ was not convinced, what a lane on which it is intended to leave is free on sufficient for overtaking of races - / «?. Standing and this maneuver he will not create hindrances to counter and moving vehicles on this strip. Owing to specified K-n has not dropped car M-2141 moving in a counter direction under control of CH and has made with it collision in which result car M-2141 was thrown out on a strip of the passer by movement where he has faced car MAZ, under control of K-va. After that car MAZ has overturned. During road accident from the received wounds the passenger of car M-2141 S and the driver of car MAZ K-v have deceased. To the passenger of car MAZ K-howl the physical injuries which have entailed heavy harm to health have been caused, and in - 1 See: Tjazhkova IT. Careless crimes with use of sources of the raised danger. SPb., 2002. With. 79. 53 ditelju car M-2141 CH - the physical injuries which have entailed harm to health of average weight. Naturally, to the criminal liability there was privle-chen a driver of car GAZ-31029 K-n, though death K-vu and heavy harm to health K (to the driver and passenger MAZa) have been caused by the car under control of driver CH. One of widespread errors in investigatory and judiciary practice is the aspiration to define the main originator of incident, the person who has created emergency conditions, and it to make entirely responsible for an event. As convincing acknowledgement the told is served by the following example. Motorcyclist D, being in a state of intoxication, transported on a sidecar machine of two drunk passengers. The driver of lorry G moving towards has roughly broken rules, has left on a left-hand side of road and became; to move on it. Seeing it, D, continued counter movement, not reducing speed. Only at the last minute, when the probability of collision became obvious, both drivers have tried to prevent it, but was already late. As a result of failure one of passengers of a motorcycle was lost, and less heavy harm to health has been done to the second. The regional court has condemned G, and concerning D the thief has taken out justificatory prigo-/W, believing, that the infringements admitted by it were not in a causal relationship with consequences, that the unique originator of failure is G, going on a strip of counter movement. The sentence has been protested by the assistant to the Prosecutor General of the USSR. In the protest it was noticed, that admitted G infringement of rules, did not release D from a duty to accept safety measures. It is more than that, Rules obliged it to carry out action under the prevention stolknove-nija and, in particular, to stop. However D has ignored these requirements, thoughtlessly counting, that such measures will be accepted by the driver of In protest F 1 Archive of Railway regional court of of Voronezh. 2001. Business № 1-224. 2 Similar requirements to contain and in item 10.1. Current Rules of traffic. 54 It was fairly noticed, that a conclusion of court that state of drunkenness in which was D, had no causal relationship with its thoughtless dejst - ^ vijami and has not prevented it to react in due time to developed conditions, as has served one of causes of accident, is erroneous. The sentence has been excellent, and the court of appelate jurisdiction has taken out concerning D accusatory приговор.1 At the same time representation what in road and transport prois-? Processions with participation of several persons by the originator there can be only one of them, was theoretically proved. In the literature the opinion according to which with the come harmful consequences in a causal relationship there can be only actions of one participant of road and transport incident was expressed. When with the same harmful consequences are in a causal relationship of infringement of other participants of movement, subjects of other articles UK, on the same criminal case there can come responsibility for various structures of crimes. For example, on item 264 and item 266 or 268 UK the Russian Federation. The sentence of the Krasnodar regional court for the failure which has occurred on a railway crossing, had been made accountable the driver of car "VAZ" K and the composer of trains M.Dejstvija of the first were kvalifi - J tsirovany on ch. 3 items 264 UK the Russian Federation, and actions of the second - on ch. 3 items 263 UK the Russian Federation. M has not provided the necessary alarm system and traffic safety of a shunting train as a part of a diesel locomotive and a platform through the railway crossing unprotected and not equipped with a barrier located on Sormovsky street in Krasnodar. In turn K has shown a carelessness, has exceeded speed, has gone round the motor vehicle which has stopped before moving and has made collision with a platform. As a result of failure was lost two persons - passengers of car "VAZ". f 1 See: procurator's supervision Practice by consideration by vessels of criminal cases: sb. Documents. M, 1987. With. 452, 453. 2 See: GorbuzaA., SuharevE. About qualification of road and transport crimes//Owls. Justice. 1980. № 8. С.28. 55 Correctness of the taken out sentence has not caused doubts in the Full court on criminal cases of the Supreme Court of the Russian Federation. Failures on zheleznodorozh - ^ nyh moving - widespread cases in which two kinds of vehicles when actions of guilty persons are qualified under different articles УК.1 participate Complexity in investigation is represented also by road and transport incidents in which heavy consequences are consistently caused at alternating fragments, each of which looks as independent road accident. So, driver JU forces down pedestrian E, then makes collision with the counter car under control of O then its car skatyva-etsja from road and overturns. Thus, on the accepted classification consistently there is arrival on the pedestrian, a collision and overturning. Thus in each of them there come heavy harmful consequences: at-chinenie death to the pedestrian, heavy harm to health of the passenger of the counter car, and at overturning the passenger who was in the car the-primary source of all these events perishes. In the resulted example the variants connected with an establishment of relationships of cause and effect and definition of guilty persons are possible. One of possible variants can consist that pedestrian E,/fc\roughly breaking rules, runs out on road in immediate proximity in front of J.Posledny's car, avoiding arrival, sharply brakes and turns on to the left. Its car brings, and in it the counter car hits, at the wheel which there was O.Ot of blow car JU rolls down in a ditch and overturns. If JU before arrival on the pedestrian went without infringement of rules with the established speed, and its subsequent actions have been made in an emergency condition (when it had no technical possibility to avoid arrival) its responsibility will be excluded. Absence of infringements from party O also will eliminate its responsibility. There is pedestrian E, in 1 See: Zhulev V. I. Crimes in transport. M, 2001. With. 91-93. 56 Which actions there could be a corpus delicti, provided by item 268 UK the Russian Federation, but he was lost. * Other variant. Arrival on the pedestrian was a consequence of infringements pra twisted the traffic, admitted by driver JU: a carelessness and excess of speed at approach to a pedestrian crossing. On its fault there was a collision with motor vehicle O at departure on a strip of meetings nogo movements then the car operated it has moved down in a ditch and a feather - has returned. Thus, all come heavy consequences are in a causal relationship with the infringements admitted JU. The act made by it comes under to qualification on ch. 3 items 264 UK the Russian Federation, providing otvetst vennost for infringement of rules of the traffic, entailed on the neowatchman - nosti death of two persons. And the third variant. JU has admitted named above infringement of rules which preceded arrival on pedestrian E (a carelessness, excess of speed at an entrance to transition). Its further actions (to the left) infringements did not represent braking and a top, as it has made maneuver within the "" half of carriageway. Collision with a counter motor vehicle was a consequence of that its driver O made the forbidden overtaking and has left on a strip of counter movement. If it dvi - ^ galsja on the strip collision and the subsequent falling of car JU in a ditch would not occur. In this variant of action JU should be qualified already on ch. 2 items 264 UK. Similarly should be qualified and actions O which is guilty in collision and the consequences which have come behind it. Each of drivers is guilty in death causing to one of two victims. Rapidity of road accident, influence on it of many conditions and factors often cause necessity of carrying out of the investigatory experiment, allowing to recreate a picture happened, to establish the moment of the visual # Fixings by the driver of occurrence of danger to check up correctness and 57 Timeliness of the actions undertaken by it under the prevention of road accident and other circumstances. Among the various examinations spent in connection with investigation of road and transport crimes (medicolegal, trasologicheskaja, biological, etc.), the most specific and containing considerable volume of the information are technical expert appraisals. They can have versions (engineering-transport, diagnostic, engineering-psychological, etc.) and to concern the questions connected with a technical condition of vehicles, with a condition of roads and their arrangement, with specific features and possibilities of the driver and variety of other circumstances. As to the most widespread autotechnical expert appraisal the range of questions taken out on its research is rather wide, and it promotes a full and true establishment of relationships of cause and effect of difficult road accidents. Necessity for carrying out of such examination arises, as a rule, when in road and transport incident participated two and more mechanical vehicles, event developed on mnogoepi-zodnoj to the scheme, on road and on vehicles there were traces, damages and other material objects reflecting dynamics ДТП.1 At the same time it is necessary to notice, that the consequence and court are sometimes inclined to overestimate evidentiary value of the conclusion of autotechnical expert appraisal and not always consider it taking into account the fact sheet containing in other sources of proofs. And is absolutely inadmissible to "shift" on the expert the decision of a question on fault and the criminal liability concrete лица.2 Now we will analyse the criminal actions made by other participants of traffic and for which responsibility of item 268 UK the Russian Federation «Infringement of the rules providing safe work a trance - is provided 1 Excessive aspiration of inspectors (investigators) to resort to the help of experts speaks also nedos tatochnymi knowledge concerning criminalistic research of dynamics of road accident. See: the appendix №3. 2 See: Zhulev V. I. The decree. soch. With. 95, 96. 58 , Port ». It is necessary to notice, that the maintenance of given article also has undergone changes. So, according to the Federal act of the Russian Federation № 162-FZ from 8 de - * ' kabrja 2003« About modification and additions in the Criminal code of the Russian Federation »1 from initial structure of a part of 1 article 268 UK the Russian Federation causing of average weight of harm to health of the person has been excluded. Article 268 UK the Russian Federation one of the few in the current legislation which disposition practically begins with transfer of perpetrators. Does not raise the doubts and that circumstance, that under vehicles about which speaks item 268 UK the Russian Federation, all types of transport - automobile, railway, water and air mean. The exception constitutes only pipeline transport where is not present passengers, ka-4 kih-or-or other participants of movement. Therefore the given corpus delicti in the work we will analyze in bolshej degrees concerning traffic and to consider as a road and transport crime. So, in article the approximate list of perpetrators is resulted. Among them - pedestrians, the most numerous participants of traffic. Whether - traffic rules under the term "pedestrian" define «! tso, being out of a vehicle on road and not making on ^ it work. The persons moving in invalid carriages without the engine are equated to pedestrians, a leading bicycle, a moped, a motorcycle, carrying sanki, a children's or invalid carriage». Rules do not give definition to the term "passenger" as it is quite clear and is applied on all types of transport. The basic signs of the passenger are its finding in a vehicle and that it does not operate this vehicle. All other signs, ' for example, g ' About modification and additions in the Criminal code of the Russian Federation: feder. The law from December, 8th 2003 № 162-FZ//С3 the Russian Federation. 2003. № 50. Item 4848. 2 About Rules of traffic of the Russian Federation (together with «Substantive provisions under the admission ^ vehicles to operation and duties of officials on maintenance of safety of traffic»): the Ministerial council decision - the Governments of the Russian Federation, 23 okt. 1993г. № 1090//SAAP the Russian Federation. 1993. №47. Item 4531. } ???? 59 Whether the passenger had the ticket for journey, on what seat in the car it settled down, whether there was he the worker of any type of transport etc., for definition of the person as the passenger have no value. It is necessary to understand, who was meant by the legislator, speaking «about other participants of movement». In traffic by such persons there can be bicyclists and drivers of other vehicles who are not among the mechanical. The drovers leading on road of pack and riding animals or herds concern their number also. The subjective party of a crime concerning consequences is possible only in the form of imprudence. The mental relation to the fact of infringement of rules can be both careless, and deliberate. Edition of a disposition of item 268 UK allows to draw a conclusion that object of the considered criminal trespass are the public relations, called to provide safe work of transport, safety of its movement. Thus consequences are connected exclusively with accidents with people: with causing by victim of heavy harm to health, either death to one or two and more persons. Thus, qualification of actions of the guilty is connected exclusively with the specified severity level of the come consequences, not looking that as a result of the given crime can come and other harmful consequences (easy or average weight harm to health to the person, material damage causing). For qualification of actions (bezdejstvy) guilty persons under item 268 UK the Russian Federation it is necessary, that their acts have formed the objective party of the corpus delicti i.e. that they have broken safety rules of movement or operation of vehicles. With reference to each type of transport these rules are stated in various normative acts, including federal acts, governmental decrees, departmental instructions, charters, positions, etc. On motor transport the basic normative act in considered sphere are Rules of traffic of the Russian Federation. 60 (.... Technical progress, improving vehicles and roads, could not isolate them from pedestrians completely. However, being most ujaz - ~ vimym the participant of traffic who always lost and loses in "duel" with the car, the pedestrian and itself is capable to create an emergency, thus even to remain sometimes and safe. It is characteristic, that relative density of the pedestrians who have suffered in road and transport proisshest-vijah, throughout several last years constitutes approximately 7з from total of victims. So, in 2002 their relative density has constituted 36,4 %. 1 On the first place on number of victims began to leave drivers and passengers of vehicles. The matter is that the quantity of vehicles and accordingly drivers and passengers increases much faster. That circumstance affects also, that the accomplishment of modern roads, the equipment of city streets underground and elevated transitions more and more severs transport and foot streams, and to cars becomes more and more close on proezzhej parts. However it does not mean, that troubles passed pedestrians. Absolute indicators remain rather high: on roads of Russia in the same 2002 13939 pedestrians, and the traumas received by pedestrians in road accident were lost, were characterised by heavy consequences (15 victims from 100 victims).3 sh the Part of these incidents are made exclusively on fault drive - l Pour vehicles and, certainly, the question on any responsibility of pedestrians does not arise. Usually they are a consequence of gross violations of driving of vehicles: excess of speed in dangerous places, infringements of rules of overtaking, maneuvering, using lighting devices and, certainly, infringement of rules of journey of pedestrian crossings. Every year the considerable quantity of pedestrians gets under wheels of cars at crossing of roads on a pedestrian crossing (the ninth part of all 1 About a condition of safety of traffic in the Russian Federation: gos. The report//the Russian newspaper. ^ 2003. On September, 11th. 2 See: fig. № 1 appendices № 2. 3 About a condition of safety of traffic in the Russian Federation: gos. The report//the Russian newspaper. 2003. On September, 11th. 61 Arrivals on pedestrians it is made in these places). More than 90 % of the interrogated pedestrians have noticed, that drivers almost never let their pass on * і ™ adjustable transition. I However the overwhelming majority (everyone three of four) accidents with pedestrians occurs exclusively because of the last. Here again there are situations when the pedestrian should bear responsibility. Complexity of an establishment of a causal relationship between the admitted pedestrians infringements and the come heavy consequences consists that these consequences are caused not by the pedestrian-infringer, and a vehicle on which way it has appeared. Avoiding arrival on the pedestrian, the driver It is forced to brake sharply, abruptly to turn or make other ekstre - # malnoe action on management of a vehicle. So, at sharp braking, especially under adverse road conditions (a snow ice crust, ice, etc.), the car can bring and throw out on a strip of counter movement or in a ditch. At unexpected turn collision with other vehicles or arrival on a protection also are possible, a column, etc. As a result there can come consequences heavier, than arrival on the infringer-pedestrian. In any such case, when the reason of creation of an emergency ^ There were actions of the pedestrian, should be established, whether have been admitted Half; rushenija Rules till the occurrence moment on road of the person, whether should and whether the driver could expect such occurrence. If its infringement was not, and the originator of creation of an emergency was the pedestrian, the answer the question on correctness of actions of the driver - since that moment when he has seen occurrence of the person all the same demands. But all these questions make sense only under a condition if the driver had time and distance stock, sufficient for! Braking and car stops or if it instead of braking have withdrawn - * ' ' About a condition of safety of traffic in the Russian Federation: gos. The report//the Russian newspaper. 2003. On September, 11th. 62 chil speed, expecting to "slip" before the pedestrian, than only has aggravated a situation and has increased weight of the come consequences. * Incidents when because of the pedestrian other people or to an ice crust - perish pajut other heavy consequences listed in the law, are extended. However cases of attraction of guilty persons to the criminal liability rather редки.1 it Speaks a number of the reasons. Most frequent of them - leaving of a place of road accident by the pedestrian-infringer, it neustanovlenie. As a vivid example the following case which published in a press and has received the big public resonance can serve it: « ... On a motorway Moscow - Kazan at a public transport stop there was a road accident. Some minutes prior to tragedy the trip bus which left passengers among whom was about 20 children from the nearest villages there has stopped. Children should change on their waiting school bus standing on the counter party of road. At this time from Cheboksary the car VAZ-2109 moved. Pedestrians have stopped at edge proezzhej parts and began to drop the car. According to the eyewitness, unexpectedly one of them - the elderly man-was directly in front of the car sharply has accelerated a step. To avoid arrival, the driver took to the right and has pressed brakes. On ice-covered road the uncontrollable car has incurred juzom, it was developed also sideways has driven into children. As a result y incidents have suffered 16 pupils of elementary grades. Them have urgently taken away in! Hospital. At many - craniocereberal traumas, bruises. Two from schoolboys are in reanimatsionnom branch in very grave condition. The others - under supervision of doctors. The driver of "nine", cheboksarets average years, is in a shock condition from happened, and the pedestrian who has provoked failure, from a scene has disappeared ».2 The second reason consists that in actions of the driver infringements of rules of traffic and operation of vehicles often also are established. At such mutual fault of circumstance are treated ^ _ , ' For example, according to statistical data ITS the Municipal Department of Internal Affairs of the Voronezh area in 2002-2004 was not a cart - buzhdeno any criminal case concerning pedestrians. 2 see: JAkovlev V.Postradali children//the Russian newspaper (Volga-Urals Mountains). 2004. On January, 16th. 63 Not in favour of the driver, and it even can be involved in the criminal liability, and infringements of the pedestrian are taken into consideration as the circumstances commuting punishment (subitem and "z" item 61 UK the Russian Federation). Thus quite often pedestrian and itself falls a victim it of the created situation. But even when presence in actions of the pedestrian of the corpus delicti provided by item 268 UK the Russian Federation, obviously, investigatory and courts of justice usually do not resort to punishment under criminal law application. Such cases the big rarity also testify, more likely, not about humanity of law enforcement bodies, and about their inability (or unwillingness) to the full to use force of the criminal law. Probably, it is influenced also by complexity of an establishment cause and effect связей.1 And nevertheless examples are. For example, the Supreme Court of RSFSR has upheld a sentence of the Krasnoyarsk provincial court which has condemned K under item 213 UK RSFSR (analogue of item 268 UK the Russian Federation). Drunk pedestrian K passed road to not put place and has created emergency conditions. It has been as a result brought down three persons, two from which have deceased, and less heavy physical injuries are caused the third. The given case is indicative also because itself condemned K also it has appeared a victim of own imprudence. Heavy physical injuries have been caused it. The third reason, on which guilty of fulfilment of a road and transport crime the pedestrian (or other participant of traffic) is not made accountable under item 268 UK the Russian Federation consists that in the modern Russian criminal legislation concept legal effect «emergency conditions» is not established criminally, and in the criminal law theory value of emergency conditions in the mechanism of fulfilment of road and transport incident is insufficiently investigated. Moreover, the mechanism of fulfilment of road and transport incident is not considered and in Rules of traffic of the Russian Federation. Only has been more recently made per - 1 See: Zhulev V. I. The decree. soch. With. 147, 148. 2 See: the Bulletin of the Supreme Court of RSFSR. 1976. № 6. With. 15. 64 vyj a step to fill the created legal vacuum. So, the Governmental order of the Russian Federation from 25.09.2003г. № 595 «About modification and additions * In the Ministerial council Decision - the Governments of the Russian Federation from October, 23rd 1993г. № 1090 »point 1.2 Corrected traffic of the Russian Federation was to polnen several terms, among which -« danger to movement ». The given term is defined as« the situation which has arisen in the course of traffic at which movement continuation in the same direction and with the same speed creates threat of occurrence road and transport prois processions ». Having analysed is standard-legal definition «danger to movement» can draw a conclusion that it, first, does not reflect all reasons of occurrence of such situations, and in the second, does not consider such situations at which the direction of movement and speed change, but threat of occurrence of road and transport incident remains. It is possible to assume, that based on explanation of features sozda nija and developments of emergency conditions application of item 268 UK the Russian Federation to guilty persons would allow to raise considerably degree of safety of traffic in the conditions of its constantly increasing intensity on sovre mennom a stage of development of our society. ^ summing up chapter 1, it is necessary to notice, that legal regulirova - є traffic not always has time to correspond to a level of development of the traffic. Such discrepancy often meeting recently (because of rough level of technical development) regulation legal mechanisms is characteristic for many structures of texnocratic offences, not only in the Russian legislation, but also in the legislation of the foreign states. The operating Russian legislation in sphere of maintenance of safety of traffic has a number of the lacks consisting in neso - * . 1 About modification and additions in the Ministerial council Decision - the Governments of the Russian Federation from October, 23rd 1993г. № 1090: the governmental order of the Russian Federation, 25 sent. 2003г. № 595//the Russian newspaper. 2003. On October, 2nd. 65 otvetstvii the structures of offences formulated in corresponding rules of law to a traffic level of development, in particular, in unreasonable restriction of a circle of the public relations recognised as object of given offences; in incomplete reflexion of structural elements of the mechanism of fulfilment of a road and transport crime in dispositions criminally-rules of law, establishing responsibility for crimes of the given kind; in definition of the basis and limits of the criminal liability for fulfilment of road and transport incidents and its insufficient differentiation.
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A source: Lyubimov, Leonid Vyacheslavovich. Traffic accidents: problems of legislative design of the compositions and differentiation of the responsibility of road users [Electronic resource]: Dis. ... Cand. legal Sciences 12.00.08. -M .: RSL (From the collections of the Russian State Library). 2005

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  2. the FIRST CHAPTER. Historical experience of a legal regulation of maintenance of safety of traffic and responsibility for road and transport crimes, their concept and a place in the operating criminal legislation of Russia.
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  11. §2. The features of road and transport crimes shown in the mechanism of their fulfilment
  12. 1.2. CONCEPT, THE ROLE AND THE PLACE OF CUSTOMS BODIES OF THE RUSSIAN FEDERATION OF SYSTEM OF ENFORCEMENT AUTHORITIES OF THE RUSSIAN FEDERATION
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