§1. Criminal liability definition in the criminal law theory.

Before to open forms of realisation of the criminal liability, their maintenance and value in the decision of questions of crime control in the conditions of ruin reigning in Somalia and incessant civil war, it is necessary to understand theoretical concept "criminal liability", to define its basis and essence.

Source of a guarantee of legality and the public law and order is the person. Much depends on how it will arrive. Thereupon the person bears responsibility for the actions, of course, if it made and has reached corresponding age. Besides criminal, it also should bear a morally-ethical civil responsibility. The responsible person is such person whom namereno to behave honesty and reasonably, to undertake efforts for performance assigned on it a society and the state of duties, seriously to think of them. Responsibility in this sense can be either moral, or legal. Hence, on the person are imposed

Moral, and legal responsibility for the actions.

At the heart of the theory of classical school of the right the philosophical doctrine about determinancies of human behaviour and the materialistic doctrine about free agency lays. The same postulates underlie definition of the basis of the criminal liability and its essence. The doctrine about free agency starts with a duty of the person to operate with the corresponding

The rules established in a society. It means not that other, as ability of the person to make of the decision with skill and observance

Rules of law, that «is connected only with realisation of forbidding norms» [7] which the norms establishing punishable acts and measures of responsibility for their fulfilment concern. When the person operates differently, than it is offered laws then the state, first, states a negative estimation to its behaviour and, secondly, applies to it forced measures. In it the essence of the criminal liability consists. [8]

The criminal liability in theory of law consider in different aspects: as concept; as an element criminally-legal relations, having the time borders; and as duty realisation to undergo the person of deprivation and restriction of its rights for sodejannoe in the statutory form. Last aspect is a theme of the present research. Criminal liability realisation «under the general rule finds the embodiment in those or other measures of the state compulsion appointed court. These measures are called as forms of realisation criminal


Responsibility ». [9]

Before to pass directly to forms of realisation of the criminal liability in Somalia, it is necessary to be defined with its concept and the realisation basis.

The criminal liability - first of all, a category objective, it arises in connection with committing a crime. Thus, it extends not only on those who makes criminal actions, but also to those who helps and prompts the criminal by encouragement, or somehow meaningly assists in fulfilment of such certificate (for example, by granting of the information, means and tools

Committings a crime, or the practical help).

In the legal literature the considerable attention to concept of the criminal liability, as to one of kinds of legal responsibility is paid. The concept "criminal liability" is among the most difficult and important problems in criminal law. The law does not give its definition and does not open the maintenance owing to what in theory of law there are different approaches to criminal liability definition.

In the literature the set of definitions of the criminal liability is given, but there is no standard. Thereupon it is expedient to analyse different theoretical definitions of the criminal liability and to formulate its concept comprehensible to development of the theory of criminal law of Somalia and disclosing of forms of realisation of the criminal liability.

In the theory of criminal law of Somalia it is not given due attention to explanation of concept of the criminal liability as it is made, for example, in Italy, to Russia, a number of other countries. We will note, as today there are different points of view and among the Russian scientists on this question. In the criminally-legal literature of the modern western countries concern only separate elements of this concept. Meanwhile for development of the theory of criminal law in Somalia important - explanation of the different points of view on concept of the criminal liability, its time borders, and for practice - development of the comprehensible definition, capable to focus activity of law enforcement bodies, its realising.

Development of concept of the criminal liability is connected with the humanities, in particular, it is under construction on fundamental concepts of philosophy, doktrinalnyh positions and moral principles of theory of state and law, knowledge of bases of psychology of the person, etc. For Somalia it is especially necessary to discriminate the criminal liability which is legal concept, from other kinds of social responsibility (philosophical, moral responsibility), important, both for criminal liability definition, and for education and socialisation of the person.

To make definition of concept of the criminal liability as one of the major institutes of criminal law — means to open its essence, the maintenance and value. It is recognised, that by the basic idea of the doctrine of criminal law penetrating the criminal legislation, the idea «about maintenance of inevitability of the criminal liability corresponding to character and degree of the social danger of the committed crime, to circumstances of its fulfilment and the person guilty» is. [10]

Some Somali lawyers consider, that the fact of infringement of norm of the criminal law established by a society, attracts responsibility. According to opinion of these authors, in any society there are the certain rules regulating mutual relations between people. These rules happen different, and the reasons of their occurrence depend on religion, traditions and culture. Each society has the customs and regulations of the rights and duties of its members. Laws of a life of a society start with a postulate that the one who breaks the rights established by it and duties of members of a society, that, in the presence of ability to be responsible sodejannoe, will be recognised by guilty and will incur the deserved punishment. [11]

The criminal code of Somalia, as well as the legislation of the majority of the countries, does not contain criminal liability definition. However in item 59 item, 60 UK Somalia is used this concept. For its definition we, in bolshej to a measure, have addressed to the theory of the Italian criminal law as UK Somalia is created on similarity UK of Italy and to the theory of the Russian criminal law most carefully developing this concept.

In the theory of the Italian right the criminal liability is understood as «responsibility for the act defined in the criminal law which is expressed in imputation of this act in fault to the subject and in application to it, as consequence, the criminal sanction». [12]

According to some Italian scientists the criminal liability is a duty to be punished, statutory, in connection with committing a crime. [13] thus, this concept is identified with concept "punishment".

In the doctrine of criminal law of developing countries also there is no uniform definition of the criminal liability. At the same time, in the criminal legislation of some the African states the concept of the criminal liability is given in articles of the criminal code containing an explanation of used terminology. So, in introduction chapter UK of Nigeria, in the item "e" the general principles of application of laws, their interpretation and definition of separate technical terms are concentrated, following definition of the criminal liability contains: «the criminal liability is understood as a duty to bear punishment for a criminal offence». [14]

Before to pass to consideration of the existing different points of view concerning concept of the criminal liability, taking place in the Russian jurisprudence, it is necessary to stop on some moments connected with this concept.

Responsibility is expression of the certain relation between the person and a society (collective) or the state in which frameworks political, legal and moral demands are made to it. Any responsibility has positive and negative aspects. The positive aspect of responsibility is realised by means of performance by the person of the duties assigned to it not to make illegal act, it is always connected with consciousness of responsibility of the behaviour, understanding of a debt, observance of the rules of behaviour established in a society.

If the person is not considered with the requirements expressed in rules of law, makes illegal act in this case we face the negative aspect of responsibility connected with putting on on this person of duties to undergo deprivation of personal and property character, provided in the rule of law. In other words, the specified aspects of responsibility express different forms of realisation of the right. Positive aspect - the form of due behaviour, negative - the form of compulsory behaviour.

Certainly, in the right, in particular in criminal, on a surface the negative aspect of responsibility as infringement by the person of legal requirements is always connected with application to it of negative consequences in the form of the punishment containing in the sanction of corresponding article, or in other form provided in the law always lays.

Meanwhile influence of the rule of law on behaviour of people is not connected only with application of sanctions. The rule of law, and criminal law, its disposition, acts as stimulus of due behaviour, it assigns a duty to the person to follow the instructions expressed in it, not to break them.

In Russian dictionary it is noticed, that responsibility is «necessity, a duty to give somebody the report in the actions, acts». [15] Primenitelno at the criminal liability - to give the report to the state.

In certain degree the similar approach to understanding of responsibility can be found out in the Somali explanatory dictionary. There it is told, that responsibility - «the duty assigned to the person to bear responsibility for the acts». [16]

Perhaps, the most widespread is the opinion which has found reflexion in the Russian legal encyclopaedic dictionary that the criminal liability is the measure of the state compulsion applied according to the criminal law to the person, committed a crime. [17]

In spite of the fact that the term "criminal liability" many times meets in norms of the criminal law, the legislator does not give it legal definition. [18 [19] in M.J.Dvoretsky's this occasion writes: «Against the theoretical offer that there is« a necessity of creation of base article in which it is necessary to give concept of the criminal liability, its kinds. That would serve as the indisputable certificate of what it is legal effect for persons,


Committed a crime ».

The analysis of the various points of view of some scientists on a problem of understanding of the criminal liability allows to allocate, five basic variants of its definition.

Supporters of the first variant consider, that the criminal liability is realisation of criminally-legal sanctions (the criminal liability and punishment, in this sense, are identical). Its supporters are O.E.Lejst, I.S.samoshchenko, M.D.Shargorodsky, [20] Santalov A.I. [21 One of variants of the given point of view are V.P.Malkova's theory, in conformity from which the criminal liability is reduced to real preterpevaniju by the person who has committed a crime, provided the criminal law and concretised in a sentence of court of measures of the state censure and compulsion. It is necessary to notice, that in this definition, as well as in the majority of definitions, has found reflexion only negative aspect of an investigated question. Thus all is reduced only to concept of punishment, that is there is an identification of two concepts. Inadequacy of the given concepts can be found out, in chapters 11 and 12 UK the Russian Federation «clearing of the criminal liability» and «clearing of punishment». Let's notice, that operating UK the Russian Federation provides the criminal liability and without punishment (item 83 clearing of enduring the punishment in connection with the expiration of limitation periods of a verdict of guilty of court). The given comparison specifies on netozhdestvennost these concepts. As we see, UK the Russian Federation differentiates the criminal liability and punishment under criminal law. From positions of separate articles criminal and criminally - the executive legislation of the Russian Federation directly follows, that the criminal liability can be expressed, otherwise, to be realised in punishment and other measures of criminally-legal character (ch. 2 items 2 UK the Russian Federation and ч.2 item 2 Wick the Russian Federation).

Certainly, the criminal liability and punishment - closely connected legal concepts, but it is impossible to forget, that punishment, as compulsory

Lever on the person, under the legislation of many countries, including according to UK Somalia - only one of forms of realisation of the criminal liability, though also the most widespread.

The second variant of definition of the criminal liability consists in its identification with criminal legal relation (set criminally - legal, criminal procedure and corrective-labour relations). B.T.Bazylev, L.V.Golovkin, A.D.Gorbuza, N.A.Struchkov, etc. [22] I.J.Kozachenko, including the criminal liability a basic element of criminal legal relation adhere to it, enter such concept as «the criminal liability relation» which defines how «legal relation arising from the moment of committing a crime between the state and the person who has committed a crime. Thus the state is competent to limit a legal status guilty, and that is in turn obliged to undergo the deprivations of personal or property character arising from its condemnation on behalf of the state and application to it in necessary cases of punishment, provided by the criminal law». [23]

The third variant of the definition, considered concept held with such authors as JU.A.Demidov, L.M.Karneeva, P.P.Osipov, V.S.Prokhorov, [24], etc., it is possible to put the following into words: the criminal liability is a negative estimation, censure, condemnation of the guilty person for the committed crime, however, only one censure (condemnation) of the person who have committed a crime though concerns a criminal liability prominent aspect, does not open all its substantial elements and does not specify in its basic functions.

Such definition of the criminal liability as it is represented, suffers one essential lack: it identifies this responsibility with an estimation court of perfect act and (or) reproach of the person (criminal) that it has carried out wrong from the point of view of the criminal law behaviour. Clearly, that it is incoincident concepts.

The fourth variant: criminal liability definitions it is reflected in S.S.Alekseeva, J.M.Brajnina, M.P.Karpushina, V.I.Kurljandskogo, A.A.Piontkovsky's works, h.p. JAvicha, etc., and consists in its representation as the major element of criminal legal relation and represents a duty of the guilty person to undergo to adverse consequences (punishment) for the committed crime.

The given duty is based on the criminal law and provided with compulsory force of the state. So, A.A Piontkovsky in known «the Course of the Soviet criminal law» wrote: «the Criminal liability, as well as any other responsibility (administrative, civil), is, first of all, a duty to be responsible for a perfect offence, i.e. a duty to bear for the committed crime the certain personal or property damage specified in the sanction of corresponding article of the criminal law». [25]

For comparison we will result the definition given by M.P.Karpushinym, V.I.Kurljandskim: «the criminal liability in criminal law (in

Material sense) - a duty of the guilty person to give when due hereunder the report in the crime made by it: to undergo defined pravoogranichenijam (to a preventive punishment etc.), following from the established order of the decision of a question on responsibility to be


Condemned on behalf of the state and to incur the deserved punishment ». [26]

The basic remark by these and other similar definitions consists that their authors consider the criminal liability only as a duty i.e. as a legal relation part.

So, I.J.Kozachenko considers, that: «the Criminal liability represents the legal relation which has arisen from the moment of committing a crime between the state and the person who has committed a crime: thus the state is competent to limit a legal status guilty for the purpose of its correction, and re-education, and that, in turn, is obliged to undergo the deprivations of the personal and property character which has arisen from its condemnation on behalf of the state». [27]

It is necessary to tell, that many scientists open the criminal liability through legal relation: responsibility is considered as a kernel, object, a stage, a component, the maintenance of guarding legal relation. In other words, responsibility and legal relations are not contrasted each other, and considered in unity. Really, the criminal liability is realised in frameworks criminally - legal relations, but its time borders is separated with borders criminally-legal relations, arising, according to the law - from the moment of committing a crime, and in practice - from the moment of detection of signs of a crime. The criminal liability, in our opinion, its time borders, proceeding from criminal law positions, are connected with an establishment of the person who have committed a crime and its ability to be responsible, and the criminal liability in forms inherent in it after a recognition of the person guilty according to a court sentence »is realised.

Recognising organic communication of the criminal liability with guarding legal relation, aforementioned scientists deny in essence that fact, that the criminal liability if to consider it in respect of actual realisation and there is a guarding legal relation. Now a number of scientists costs on a position of such understanding of the criminal liability. So, for example, L.V.Bagrij-Shahmatov believed, that on the essence the criminal liability is set of certain public relations, that under the influence of rules of law these relations become legal, that their maintenance — «the mutual rights and duties of the parties». [28]

In this connection it is necessary to note inconsistent enough position the occupied JU.M.Tkachevsky by consideration of this institute in the textbook on criminal law. Having specified, that «the criminal liability is the legal relation arising between criminals and the state», it does not open the maintenance of this legal relation and writes, that the criminal liability can be defined, how statutory adverse for the person who have committed a crime, the consequences expressed in condemnation, interfaced to punishment and a previous conviction, or not interfaced to it. [29]

And last, fifth variant of definition of the criminal liability it is possible to allocate at A.N.Ignatov and T.A.Kostarevoj which treat the criminal liability as the basic maintenance of criminal legal relation, that is set of the rights and duties of the citizen and the state concerning criminal behaviour of the citizen.

According to A.N.Ignatov, the criminal liability is a legal obligation of the person who have committed a crime, to answer for sodejannoe the state and to undergo certain deprivations and restrictions of the rights, statutory. The criminal liability comes only in connection with committing a crime and only for the persons possessing signs specified in the law (responsibility, achievement of certain age). [30]

«The criminal liability - was considered by N.F.Kuznetsova it is necessary to define as the statutory negative consequences imposed by court on the person, the committed crime, expressed in the fact of condemnation and a previous conviction, or the condemnation interfaced to execution of punishment and a previous conviction». [31]

The similar position is occupied with V.P.Revin, considering, that the criminal liability is a duty of the person who have committed a crime, to incur for the given crime adverse consequences in the form of deprivations or restrictions of the rights and freedom, established by the criminal law and realised in the form of the state compulsion. [32]

Goats And. P believed, that the criminal liability as an element of social responsibility, should comprise all signs of last positive and negative characteristics), i.e. - observance sistemnosti the rights, so far as the positive criminal liability acts in criminal law and as independent responsibility, in last variant (at committing a crime) it also should be called as the positive criminal liability. [33]

B.S.Volkov, in a number of the works defined the criminal liability as the measure of the requirements shown to the individual as a member of collective expressed in the criminal law, societies (state), non-observance

Which attracts the certain legal effects provided in its sanction. [34]

The analyzed sight has been subjected to the critic in the legal literature. So, M.D.Shargorodsky noticed, that the positive aspect of responsibility is only consciousness of responsibility, but not the responsibility, understood it as a duty to undergo certain measures of censure and compulsion. [35] Here too it is necessary to notice, that A.N.Ignatov underlined, that «anybody never and did not deny educational influence of the criminal law on the citizen and a positive role of criminal law. However to recognise, that pravoposlushnyj the citizen piously observing laws of the country, bears legal including the criminal liability, there are no bases. The criminal law in this case stays idle, is not applied». [36] it is valid, it is observed, as well as any law.

Something similar is observed and at V.N.Skobelkina. In its opinion, «division of the criminal liability on positive (perspective, active) and negative (retrospective, passive) is represented to one of the most disputable. Existence of the first version is rather doubtful. Really, if it is responsibility for the future misbehaviour which all should avoid, that, means, all adult population of the state constantly bears burden of this responsibility... In the given artificial design that value which in it is put in pawn, unlike its maintenance is given to the term"responsibility"not at responsibility retrospective. On the one hand, there is a substitution of concept"duty", and to another -

Moral categories are covered also: a debt, selflessness, etc. »[37 [38] [39]

Goats And. P considers, that as a matter of fact, positive responsibility consists of two parts: the first of them arises on feeling of social justice and equality of all and the second - on the basis of obvious requirements of the right. Both these parts in aggregate create either all consciousness, or that part of consciousness of the person, which «not zamutnena» antisocial valuable orientations, installations, motives and the purposes. [40] in later work he writes: «us rather definition of positive responsibility which should be defined, how« comprehension, performance or aspiration degree to performance of the duties in a society for a long time is offered ». [41]

According to point of view B.C. Egorov, «the criminal liability represents a duty of the person who have committed a crime, to undergo to measures of negative influence». Thus the author supposes the statement concerning positive responsibility. [42] original V.V. Pohmelkina's position which suggests to refuse criminal liability consideration in purely negative plan is represented. According to opinion of the given author, the criminal liability acts not only in retrospektivno-negative, but also in is positive-perspective aspect. Recognising the given position interesting and not subjecting its critic, B.C. Egorov, similar, has supported it that, in our opinion, it should not do in connection with definition of the criminal liability offered it as duties to undergo to influence measures that is obviously not enough for positive responsibility.

The maintenance of positive responsibility consists in a duty of the person to execute concrete instructions criminally-rules of law. Positive responsibility is realised, figuratively speaking, by refusal of punishability of the acts made under circumstances, excluding the social danger and illegality of these acts, and also in the form of clearing of the criminal liability or punishment, or its replacement with softer. At once we will notice, that at clearing of the criminal liability, it and was not realised, and at clearing of punishment and, especially at its replacement with another, softer it is realised. However, it is necessary to recognise, that the majority of the Russian authors so define the criminal liability only with reference to its negative or retrospective aspect.

Despite told above about close coherence of two aspects of responsibility, these two categories are in essence mutually exclusive.

Responsibility in positive sense excludes responsibility in negative and, on the contrary, positive responsibility is the basis for retrospective responsibility.

In our opinion both aspects of concept of the criminal liability are admissible. Important only correctly to define a target orientation of such approaches and sphere of their practical appendix.

In the literature by the Somali right we managed to find out only one definition of the criminal liability. Hadzhi N. Nuur Muhammad the Doctor of Law, in the work «the Legal system of the Somali republic» writes, that the criminal liability is a response of the state to a crime [43], that is the realised duty. The realised duty is expressed in preterpevanii by the person of adverse consequences, deprivations, restrictions of its rights and freedom peculiar to the form appointed to it of the criminal liability.

Generalising above certain concepts of the criminal liability, with a view of the given research, it is necessary to differentiate concepts accurately: «the duty to answer» for sodejannoe and «the realised duty». The duty to answer is not responsibility as has no forms, is not expressed in any measures of compulsory influence, the person undergoes nothing and can be and is not made accountable (for example, it will not be established; will evade, or it will be released from it). The realised duty as it has been noted above, on the contrary, is expressed in direct preterpevanii by the person of the adverse consequences peculiar to condemnation for sodejannoe by it.

The generalised analysis of different approaches to concept of the criminal liability allows to conclude, that as a theoretical basis of the doctrine about the criminal liability in criminal law of Somalia its negative aspect should serve. It means duty realisation to be responsible, undergo the guilty person certain deprivations and restrictions of its rights, freedom, interests, to fulfil the assigned specific duties not inherent in the person, not committed a crime. In this aspect for our research we define the criminal liability as: based on norms of the criminal law, following from the fact of fulfilment of infringement or a crime, preterpevanie the person, recognised guilty in sodejannom, deprivations or restrictions of the rights and freedom peculiar to the form appointed to it of responsibility, expressed in a court verdict of guilty.

The made definition is represented preferable as expresses essence of the criminal liability, differentiates it from concept «criminally-legal legal relations» in which frameworks it is realised and from concept «the duty to answer». The Criminal liability, taking into account its given concept, arises from coming into force of a verdict of guilty of court and stops, in our opinion after preterpevanija the person of all restrictions established in the criminal law, that is simultaneously with criminally-legal relations.

In norms UK Somalia also can be noticed, that restriction of the rights, freedom and interests of the person, putting on on it of specific duties in connection with perfect it act can take place, as in appointment to it of punishment, and security measures, conditional stay of execution of punishment. Moreover, in Somalia security measures about what it will be more in detail stated in the third chapter, can be applied and to the person who yet has not made the act provided by the criminal law, but on the behaviour represents danger to a society. In such cases applied to the person recognised dangerous to society, a security measure are not forms of realisation of responsibility though have compulsory character.

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A source: AHMED ABDIKARIM ALI. FORMS of REALIZATION of the CRIMINAL LIABILITY In FEDERAL REPUBLIC Somalia. The DISSERTATION on competition of a scientific degree of the Master of laws. Moscow -. 2016

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