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§ 1. Concepts "subject" and "object" of the operating criminal legislation, judiciary practice, philosophy and jurisprudence

To finding-out of that, the traditional treatment of a parity of a subject and object of a crime as parts and whole is how much proved, research of a parity of concepts of a subject and object in philosophy, the general theory of law and civil law can promote.

Besides, it is necessary to understand value of terms "object" and "subject" in the operating criminal legislation and judiciary practice.

Of a parity of object and a crime subject there are detailed researches, the essence of some of them has already been stated in the previous chapter of the present work. Overwhelming majority of theorists of criminal law believe, that object of a crime and a crime subject – the different legal concepts designated by corresponding terms. However in the operating criminal legislation and judiciary practice, and also in philosophy and jurisprudence, it is not observed so clear split of the concepts designated by terms "object" and "subject".

The term "subject" meets in twelve articles UK: «the subjects extracted criminal by» in item 33; «the subjects having special value» in item 164; «subjects of art, historical and archaeological property of the people of the Russian Federation» in item 190; «the subjects specified in present article» (fire-arms, its basic parts, an ammunition, explosives and explosives, the gas weapon, a cold steel – a bus) in notes to item 222 item, 223; «pornographic materials and subjects» in item 242; «subjects with pornographic images of minors» in item 242.1; «subjects or the documents having historical or a cultural value» in item 243; «subjects of military technics» in item 346 item, 347, 348; «the subjects representing raised danger to associates» in item 349.

The term "object" is used in eleven articles of Special part UK: «objects of the copyright or the adjacent rights» in ч.2 item 146; «objects of use of an atomic energy» in ч.3 item 205; «objects of atomic engineering» in item 215; «objects of life-support» in item 215.2 item, 281; «explosive objects» in item 217; «the objects taken under protection of the state» in item 243; «industrial, agricultural, scientific and other objects» in item 246; «installations, constructions and other objects» in item 251; «especially protected natural objects» in item 262; «objects protected by sentry (watch)» in item 342.

It is obvious, that use of terms "subject" and "object" serves in the majority of resulted articles UK for a designation of two groups of the phenomena of the material validity, with which co-operates (or which creates) the guilty: the term "subject", as a rule, designates chose transitories whereas the term "object" usually designates the real estate – buildings, installations, constructions etc. Thus both kinds of the phenomena of the material validity act in a role of a subject of a crime. Thus, the legislator uses terms "subject" and "object" for a designation of two specific concepts entering into one sort – a thing. But such parity of the given concepts does not coincide with a parity of concepts of object and a crime subject in a criminal law science as whole and parts.

In the operating Russian not criminal legislation differentiation of the concepts designated by terms "object" and "subject" does not meet.

However in departmental law-making such examples nevertheless are available. So, Position about tendering on the right of making contract of rent of objects of the real estate which is in the federal property, approved by the order of Mingosimuschestvo of the Russian Federation from July, 28th, 1998 №774-r, differentiates concepts of "objects of the auctions» as objects of the real estate (buildings, structures, constructions and uninhabited premises), being in the federal property, and «a subject of the auctions» which is understood as the right of making contract of rent of corresponding object to certain conditions [65].

In judiciary practice on criminal cases the term «the crime subject» is used in the same value, as in the criminally-legal doctrine. So, in item 12 of the decision of Plenum of the Supreme Court of the Russian Federation from June, 5th, 2000 №14 «About judiciary practice on affairs about infringement of fire prevention rules, destruction or damage of property by an arson or as a result of casual handling of fire» [66] the list of subjects of a crime is resulted, responsibility for which is provided item 261 UK the Russian Federation. Them concern: the woods which are entering and not entering into wood fund, and also drevesno-kustarnikovaja vegetation (including the plantings which are carrying out protective and other ecological functions). In item 11 of the decision of Plenum of the Supreme Court of the Russian Federation from November, 5th, 1998 №14 «About practice of application by vessels of the legislation on responsibility for ecological offences» [67] it is underlined, that a subject of illegal felling of trees and bushes (item 260 UK) are trees, bushes and the lianas growing on the earths of wood fund, in the woods which are not entering into wood fund, on the earths of transport, settlements (settlements), on the earths of water fund and the earths of other categories.

The term «object of a crime» in judiciary practice is used in two values: for that designation, that in a criminal law science it is accepted to name a crime subject, and for a designation actually object of a crime.

In the first value it is used, for example, in the decision of Plenum of the Supreme Court of the Russian Federation from April, 25th, 1995 №5 «About some questions of application by vessels of the legislation on responsibility for crimes against property» where in item 6 the following is specified: «At definition of cost of the property which has become by object of a crime, it is necessary to proceed, depending on circumstances of acquisition by its proprietor, from the state retail, market or commission prices at the moment of committing a crime. In the absence of the price property cost is defined on the basis of the expert opinion» [68] (our italics – a bus). In the same value this term is used in Full court Definition on criminal cases of the Supreme Court of the Russian Federation from December, 6th, 2001: «In a substantiation of the conclusion about correct qualification of actions Tereshonka under the item" "ч.3 the Russian Federation the provincial court presidium would specify item 160 UK, that object of the crime provided by item 201 UK the Russian Federation, the property of the commercial organisation is. Tereshonok has spent grain goskomrezerva of Russia, entrusted to it for responsible storage, and its actions would completely be covered by an item disposition" "ч.3 item 160 UK the Russian Federation» [69] (our italics – a bus). As we see, in the resulted judicial certificates «the object of a crime» is designated by the term that in a criminal law science it is accepted to name a crime subject.

In other published judicial certificates the term «the object of a crime» designates that in a criminal law science it is accepted to name object of a crime. So, in item 4 of the decision of Plenum of the Supreme Court of the USSR from December, 5th, 1986 №16 «About practice of application by vessels of the criminal legislation directed on protection of safe working conditions and safety of mountain, building and other works» this term with reference to structure of item 140 UK RSFSR of 1960 designates «safe working conditions of workers of the enterprise, the organisation, collective farm and other persons, constant or which time activity is connected with the given manufacture» [70]. Other example: the Military board of the Supreme Court of the Russian Federation in the Definition from January, 30th, 1996 has specified, that «object of the crime provided by item 218.1 UK RSFSR, are the public safety and the property» [71].

Thus, judiciary practice for a designation of a subject of a crime uses terms «a crime subject», «object of a crime».

All stated testifies that in the criminal legislation and judiciary practice of a word "object" and "subject" are used that in one in various values. The term "object" is used for a designation of real estate, a subject of a crime, object of a crime. The term "subject" is used in value of a personal estate and a crime subject. In one cases they designate identical concepts, of others – different, and do not coincide with values of the same terms in the criminal law doctrine.

It is necessary to underline, that a polysemy of terms "object" and "subject", them sinonimichnost are observed also in philosophy and the general theory of law.

In philosophy there is no accurate differentiation of value of the given terms. Moreover, developed in Russian and philosophy word usage, according to some authors, allows to consider words "thing", "subject" and "object" as lexical synonyms which are replaced the friend with the friend only from stylistic reasons [72].

In the dictionary of Russian of S.I.Ozhegova the object is defined as «the phenomenon, a subject on which any activity» [73] is directed.

According to data of the philosophical encyclopaedic dictionary, «a category the thing was widely used in philosophy till XIX century, and its corporality was considered as the basic sign of a thing. In the modern literature instead of a thing category usually use object and subject categories» [74].

By Brockhaus and Efron's definition, «the object (subject) is in general that is given in knowledge, or on what our informative activity is turned. The contrast to it the subject – conceiving, feeling, wishing« I »… In usual word usage objective is called that has the basis in the nature of things, irrespective of the learning subject» [75].

The word "object" has occurred from Latin «objectum» – a subject. In philosophy it designates «that, on what activity (real and informative) the subject is directed. The object is not identical to an objective reality, and acts as its such part which enters the relation with the subject» [76].

«The subject is the category designating some integrity, allocated of the world of objects in the course of human activity and knowledge. In obshchegnoseologicheskom the plan subject and object opposition is relative. The basic structural difference of a subject from object consists that enter into a subject only main, the most essential (from the point of view of the given research) properties and signs» [77].

Apparently, such parity of concepts of object and a subject in philosophy mismatches a parity of concepts of object of a crime and a crime subject in a science of criminal law and does not allow to allocate accurately differentiating signs of object and a subject.

Besides philosophy, the parity of concepts of object and a subject was deeply analyzed also by the general theory of law with reference to the doctrine about legal relations. The contribution to research of a parity of these concepts within the limits of the civil matter theory was brought also by representatives of domestic civil law. Moreover, on V.A.Lapacha's fair expression, the legal relations theory is obliged by the birth and working out of basic positions to the doctrine of civil law [78]. In particular, positions about structure and essence of legal relation are completely borrowed by the general theory of law from the doctrine about civil matter.

The problem of object of legal relation is hardly probable not one of the most debatable in theory of law, and till today's time does not find the uniform permission. Such position is caused first of all by extreme complexity of the coordination of the legal form and the actual maintenance of legal relation.

A number of researchers at all does not recognise object of legal relation as an element of its structure. The basic argument of that the object is not a part R.O.Halfina's of legal relation considers the following: «As legal relations are represented by the ideological relation, its maintenance cannot include the subjects of a material world which are object of various kinds of legal relations» [79]. She believes, that, representing the precondition of occurrence and legal relation development, the object remains external in relation to legal relation, does not join in an element of its structure. It is remarkable, that some theorists of criminal law, following the same logic, at research of the public relation as object of a crime also deduced object of the public relation for frameworks of structure of the public relation [80].

However the majority of scientists hold other opinion. For example, O.S.Ioffe specified, that «subjects and object, competences and a duty – such are elements of everyone, including civil matter» [81]. Agreeing with such understanding of structure of legal relations as a whole, scientists differently formulate definition of object of legal relation. One understand as object of legal relation subjects material and an inner world [82], others – actions of privies, things and the intangible benefits [83], the third – behaviour of a party liable [84], the fourth – actual behaviour of privies [85]. Thus as a starting position that the object of legal relation should give in to legal regulation is accepted, change or be created in the course of legal relations realisation. It is easy to notice some similarity between treatment of object of legal relation and object of a crime: In both cases the object is understood as that, on what activity of people, something changing (suffering a damage – in criminal law) from such activity is directed.

To similarly how in a science of criminal law of the pre-revolutionary period the question on the dual nature of object of a crime (the broken blessing on the one hand has been brought up, and the rule of law – with another), the general theory of law and civil law also allocate two kinds of objects of legal regulation. So, N.G.Alexander under object of legal relation understood that property object in which occasion there is a given relation between subjects, and as object of legal influence – behaviour of people [86]. With reference to the legal relations following from contracts on assignation, according to M.I.Braginskogo, it is necessary to allocate «two sorts of objects: as object of the first sort party liable actions serve, and the role of object of the second sort plays a thing which as a result of such action should be transferred» [87]. The Same position with reference to any legal relations is occupied with V.N.Protasov [88].

Accurate differentiation already object and legal relations subject is resulted at V.S.Nersesjantsa: «the Object of legal relation is an abstract maintenance of realised norm of the operating objective right, that is corresponding abstract positions of its hypothesis, a disposition and the sanction. A legal relation subject are those concrete rights and concrete legal obligations, for acquisition, realisation and which execution concrete subjects of law enter concrete legal relations …» [89].

A.I.Kovalenko believes, that the rights and duties of participants of legal relations find individual character in a subject serving in the way of existence of corresponding object of legal relation. In legal relation as he believes, a subject is the tangible reality, that gives the chance to the person to satisfy its requirements; as to object of legal relation it invisibly is present and it is embodied in a subject. It results the following example: « The person gets the goods in private shop. Participants of this legal relation are the buyer and the seller. As object the private property of the seller presented in the goods acts. When the buyer gets the goods in the state shop object already is the state ownership, but expressed, "opredmechennaja" in the goods. Apparently, here a subject same – the goods, and objects various »[90]. Such understanding of a parity of object and a legal relation subject in accuracy corresponds to positions about interrelation of object and a crime subject in modern criminal law.

L.I.Spiridonov and A.G.Bratko also consider necessary to discriminate object and a legal relation subject. So, A.G.Bratko suggests to name a legal relation subject material or the intangible benefit, and object – the actual public relation settled by the right [91]. L.I.Spiridonov specifies: «nerazlichenie a subject and object of legal relation inevitably would lead to that the most different legal relations would possess one object. Murder of the same citizen in one case with jealousy, and in other the same person – on political grounds form at the same subject absolutely various crimes. In the first case it is a question of household murder, and in the second – about act of terrorism» [92]. The analogy to criminally-legal concepts of object and a crime subject in this case is represented obvious.

Apparently from stated, division of concepts of object and a subject is characteristic not only for civil law, but also for the general theory of law. At all variety of the points of view on a parity of these concepts, overwhelming majority of authors consider, that it is necessary to recognise as object of legal relation the phenomenon immaterial (behaviour, the public relation, the property right) unlike a material subject of legal relation (a material benefit, a thing). «The legal relation Subject is the realised, individually-concretised expression of object» [93]. The object and a subject are considered as indissoluble parts of the same legal relation.

In the legislation and judiciary practice of terms "object" and "subject", and also the short analysis of a parity of concepts of object and a subject in philosophy and jurisprudence following conclusions allow to draw the spent review of use. Sinonimichnost common words "object" and "subject" in Russian (that fact, that words "object" and "subject" designate same, some theorists of criminal law [94] recognise also) attracts absence of unambiguity of each of these terms in the legislation, judiciary practice, philosophies, the general theory of law, branch legal sciences. Quite often terms "object" and "subject" use for a designation of the same concept. However and when each of these terms is used in strictly reserved value, there is no uniform basis of division of concepts designated by given terms. In one only the doctrine about legal relations four have been above allocated various, but having the equal rights to existence, positions of that in legal relation structure it is necessary to understand as its object, and that – under a legal relation subject. Such position visually illustrates absence of that accurate understanding what exactly in steam of the interconnected concepts should be designated the term "object", and that – the term "subject". The use in Russian and philosophy of terms "object" and "subject" as the interchangeable words-synonyms used in steam with each other is thought, that, has substantially affected firmness of the criminal law which has settled in a modern science of a sight about organic unity of a subject and object of a crime.

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A source: Bikmurzin Maxim Pavlovich. CRIME SUBJECT: the TEORETIKO-LEGAL ANALYSIS. The dissertation on competition of a scientific degree of the master of laws Ufa - 2005. 2005

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