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2.1. kultivirovanie the cultures forbidden to cultivation

The crimes connected with illegal circulation of narcotics or psychotropic substances, are various and are among the most difficult for qualification. Qualification of a crime, is based on the corpus delicti which is the unique basis of the criminal liability.

Hence, the deep analysis of all signs and elements of structures of investigated crimes is necessary for correct legal qualification of these acts. Besides a subject of criminal trespasses in the given crimes, are narcotics and psychotropic substances which possess own specificity and consolidate all crimes of this group. Specificity of the given subject that she allows to learn to the full the maintenance of norms establishing responsibility for the given crimes, correctly to apply and qualify them a crime. As truly marks A.A. Isaev, for structures of these crimes signs of a subject of a crime are obligatory, have independent criminally-legal value and definitely influence the basis of the criminal liability and on qualification of act. [61]

The differentiation and unification are the cores napravyolenijami in development and perfection criminal zakonodatelstyova. One of means differentiation of the criminal liability in the Criminal code Special part on a number with such as use of special kinds of clearing of the criminal liability; is relative-defined, alternative and cumulative sanctions; assumptions of possibility (optionality) of application of additional punishments, is qualifying signs and new frameworks of punishability corresponding to them. [62]

Elements essential to the offence are qualifying, which testify about sharply raised (in comparison with reflected by means of signs of the basic structure) the act social danger (and the person who have made this act). They reflect intraspecific distinctions, i.e. difference of one crime from other crime of the same sort, instead of in general from other crimes. [63]

According to A.V.Barkova as qualifying signs are understood «additional in relation to the basic structure and its signs of circumstance». [64]

At designing of structures of crimes the legislator estimates character and degree obshchestvenyonoj dangers of act. In cases of the description of signs raising the social danger the legislative design at which each subsequent part of article includes the signs more dangerous in the list, than specified in the previous parts is used. Such legislative reception allows to recognise, that the most dangerous version of a concrete crime is concluded in last chasyoti corresponding article of the Criminal code.

For example, the provided signs of item 270 UK RUz, oboznachenyonye regarding 2, name qualifying signs, and in parts 3 – especially aggravating circumstances. There are also such names of the signs listed in ch. 2-3, as «qualifying and especially qualifying circumstances»; «qualifying signs»; «the qualified and especially qualified signs»; the signs forming in ch. 2-3 «the qualified kind of a crime», and at presence ch. 4 «especially kvalifiyotsirovannyj a kind»; "aggravating circumstances"; «aggravating priyoznaki» (with reference to ch. 2) and «especially aggravating circumstances» (with reference to ch. 3), etc. Similar examples can be continued, but also resulted visually show disorder of variants at oboyoznachenii the same signs.

In our opinion, the optimal their following gradation looks: the signs specified regarding second, should be called qualifying, specified regarding the third – especially qualifying, specified regarding the fourth – is exclusive kvalifitsirujuyoshchimi signs. [65] however, there are structures of crimes, whose qualifying signs are not in the relation of submission as the general and special with the previous norms fixed in parts of second and third given article, that is the previous part, does not represent itself as the general provision for the subsequent, and the subsequent, in turn, is not for it special. According to A.N.Trajnina in such cases it is necessary to speak not about the uniform structure which is breaking up to a number of kinds (the idle time qualified, especially qualified), and about three independent structures as signs, their characterising, are various. [66] so, for example the item 127 UK RUz providing responsibility for involving of the minor in antisocial behaviour comprises 3 qualifying signs. However complexity imenovanija the given signs as qualifying that as «the Act provided by a part first present to become …» assumes use of such reception that each time in sodejannom signs of the basic or previous structure contained, but signs of item 127 UK RUz are not in similar podchineny and as a matter of fact represent independent structures a crime.

Hence, responsibility in similar designs of qualifying signs will come in the absence of some signs inherent in the basic structure of the corresponding crime.

In a considered design qualifying signs are carried out simultaneously by two functions: fundamental (as one of components of the basis of responsibility for without these signs of a crime is not present) and differentiating (taking into account the named signs more dangerous version of encroachments is designed). [67] Thus, acts in similar designs also it is necessary to recognise as qualifying signs of a crime.

So, responsibility for kultivirovanie the cultures forbidden to cultivation is provided item 270 UK RUz. This crime is one of the most socially dangerous acts constituting a drug trafficking as crops and cultivation of the forbidden narcocontaining plants form a subject of investigated criminal actions and with it svjazanny all subsequent criminal trespasses.

In the legal literature there is no common opinion concerning object of investigated crimes. It is difficult to overestimate an object role in legal qualification criminal action. As truly marks A.N.Trajnin, each crime, whether it is expressed in operation or inactivity, always there is an encroachment on certain object. [68] according to E.I.Kairzhanova «without object cannot be and speeches about the objective party of a crime, hence – about the perpetrator, about the subjective party of structure». [69] Hence, correct definition of object of the crime which is one of obligatory elements of structure without which there is no crime, helps explanation of the social and legal nature of criminal action, forms and limits of the criminal liability for the committed crime. Besides, the establishment of object of a crime gives the chance to delimit similar structures of crimes from each other, criminal actions from not criminal. [70]

Crimes constituting illegal circulation of narcotics, psychotropic substances is allocated in independent specific object criminally-right protection, however can be a component or additional object and other concrete crimes. Such conclusion follows from the general doctrine about object of a crime in criminal law and from classification of object of a crime which can be spent on a vertical and across.

Classification of objects of a crime by a vertical was the most widespread in a criminal law science for a long time V.D.Menshaginym offered still in 1938, [71] trehchlennaja: the general object – patrimonial object – direct object. Such classification was under construction on the basis of a parity of philosophical categories of the general, especial and individual. Was considered, that the general object of a crime corresponded to all Special part of the Criminal code, patrimonial object – the head of the Special part of the Criminal code, and direct object – concrete article of the Special part of the Criminal code. [72]

However similar trehchlennaja classification is not strictly scientific. So, B.S.Nikiforov primenitelno to many structures of crimes specifies only two objects: the general and patrimonial (special) or the general and direct. [73]

M.I.Fedorov, objecting trehchlennoj classifications, has specified that the general object of a crime does not exist and that the general object is only concept, instead of the real phenomenon of a public life. Therefore the concept of the general object neither for a science, nor for practice gives nothing and it is necessary to refuse it. [74] we cannot agree with this point of view, as the structure of the new Criminal code of Republic Uzbekistan unlike UK the Uzbek Soviet Socialist Republic 1959 consists of sections which in turn, share on chapters. Accordingly definition of the general, specific and patrimonial objects of encroachments has great value for definition of object of criminal trespasses.

Classification of object of a crime is across made only at level of direct object. Such classification concerns not everything, but only for two-objective and multiobjective crimes. [75]

Obshchepriznanno, that the direct object shares on the basic and additional. Thus the basic object is always connected with specific and patrimonial objects, and the additional object frequently represents absolutely other public relations. And sometimes these public relations are more significant, than what represent the basic object. For example, the basic object of illegal occupancy by narcotics or psychotropic substances (item 271 UK RUz) are valuable interests, and as additional object the life and health though they are more valuable blessings, than the property can act. N.I.Korzhansky considers, that the direct object of a crime across shares on the basic, additional and facultative. Thus facultative he names such object which is not specified by the legislator. Harm can be caused this object, and can be and is not caused. [76]

The question on what direct object is the core and what additional, according to A.V.Naumov, dares in dependence not from importance pravoohranjaemogo the blessings, and from its communication with patrimonial object. [77]

In the legal literature does not find the unequivocal answer of division of additional object. So, V.J.Tatsy believes, that additional object can be only those relations which are defined as direct object by the legislator, [78] and thus, denies presence of other additional objects which have been not specified by the legislator.

In our opinion, division of additional object into obligatory and facultative A.V.Naumov is represented to the most successful. [79]

Thus, in the further research of crimes of narcotics constituting illegal circulation, psychotropic substances and prekursorov we will adhere to that poyozitsii, that two-objective and multiobjective crimes will consist of the basic direct object and doyopolnitelnogo direct object which in turn, will share on obligatory and facultative. The basic direct object of investigated crimes is population health. The last can be defined as set of the public relations providing safe conditions of a life of many people. At the same time considered acts can mention to some extent and other objects cause a damage to other public relations, for example to the property at illegal occupancy by narcotics or psychotropic substances, to the public safety, normal activity of the state enterprises, the organisations, establishments at infringement of rules of manufacture or the reference with narcotics or psychotropic substances etc. Specified relations are additional direct objects of considered structures of crimes.

Features of direct object define character of socially dangerous acts which threaten the specified object and represent certificates of strong-willed behaviour of the people, consisting in illegal circulation of narcotics. [80]

Besides, the crime subject is one of the main elements of object of a crime. If the object of a crime represents public relations regulated by rules of law the crime subject, according to N.I.Korzhanovsky is a concrete material thing, «in which the certain parties, properties of public relations (object of a crime) are shown, by physical or mental influence on which socially dangerous harm in sphere of public relations» is done. [81]

The crime subject should be distinguished from the crime instrument or committing a crime means, that is from that, than the criminal influences object of a crime. Narcotics, are a subject of the crimes provided by item 127, 246, 270-276 UK RUz, can be as well means of fulfilment of other crimes, for example, for murder by use of the raised dose of narcotics or finishing of the victim to a helpless condition with a view of property or rape plunder, etc.

So, object kultivirovanija the cultures forbidden to cultivation, according to M.G.Ikramovoj is not population health, and monopoly of the state for crops and cultivation of narcocontaining cultures, their established order kultivirovanija. [82] it is solidary with it and M.H.Rustambaeva's opinion which considers, that as direct object of this crime the public relations providing gosudarstvenyonuju monopoly for principal views of activity, connected with a turn of narcotics and psychotropic veyoshchestv act. [83]

The fullest in our opinion, definition to direct object of the given crime, is given by M.M.Kadyrov who considers, that as direct object of the crime connected with crops or cultivation narkotikosoderzhashchih of cultures, the public relations providing process kultivirovanija narkotikosoderzhashchih of plants according to their special-purpose designation as medical products and excluding that their use to the detriment of health of the population are, [84] and additional object is the land tenure order. [85]

Additional object of this crime, in our opinion, nevertheless is population health. Danger of this crime consists that being engaged illegal kultivirovaniem narkotikosoderzhashchih plants, persons promote their further distribution. Illegal kultivirovanie the same as also illegal manufacturing of drugs, is initial action that represents the raised danger.

Crime subject are narcocontaining plants: opijnyj and olive poppies, plants cannabis, a sowing and Indian hemp etc. the Given cultures differ considerable concentration of drugs and consequently plants or their parts admit narcotics. [86] as, the standard list or the list of narcocontaining plants in our legislation is not present, for their definition special knowledge are required, and at investigation and judicial disposal of legal proceeding of the specified category it is necessary to have the expert opinion. [87]

Besides for correct qualification of the given crime it is necessary to establish and other element essential to the offence corresponding to its components characterising its objective party.

So, the objective party of an investigated crime is expressed in kultivirovanii, i.e. illegal crops or cultivation of the plants containing naryokoticheskie means or psychotropic substances.

Illegal kultivirovanie represents cultivation narkotikosoderzhashchih the cultures, including them poyosev and cultivation without the corresponding licence for the given kind of activity. In sootvetstyovii with the Republic Uzbekistan Law «About narcotics and psychotropic substances from August, 19th, 1999» [88] kultivirovanie narkotikosoderzhashchih plants is monopoly gosuyodarstva and it is authorised state predprijatiyojam in the scientific purposes in the presence of the licence of the Republic Uzbekistan given out to the Ministry of Internal Affairs for the specified kind of activity. Thus the duty is assigned to the licensee to carry out activity in strict sootvetyostvii with licence requirements and conditions.

Under crops of the cultures forbidden to cultivation as explains the Decision of Plenum of Supreme Court RU from October, 27th, 1995, it is necessary to understand crops of seeds or disembarkation of sprouts without the appropriate permission to any ground areas, including on the empty earths. Hence, the characteristic and a ground area accessory on which crops and cultivation are made, for qualification sodejannogo have no value and can be the most various: the earths of farms, the state land fund, the private leased possession, the empty earths and other, and also the further destiny of crops (manufacturing from them narcotics ready to the use or psychotropic substances, reception of a fibre, oil, seeds for hozjajstvenyonyh needs, etc.).

The higher degree of jurisdiction criminalises all above-stated the acts, divided only on time, each of which admit as completed crime from the moment of crops irrespective of the subsequent vshoda or growths of plants.

The decision Plenum of the Supreme Court of Republic Uzbekistan does not make an explanation concerning qualification of acts on acquisition of seeds, sprouts cultivation, them prorashchivanie out of soil or in a soil small amount in which the plant cannot reach a maturity. However in the special literature it is possible to meet the conventional opinion that similar actions should be considered as preparatory actions. [89] besides, sprouts by mistake of the plants which are not comprising narcotics or psychotropic substances (for example, cultivated flower sprouts by mistake instead of opijnogo a poppy) it should be regarded as attempt.

It is necessary to understand care of crops or shoots of the plants forbidden to cultivation as cultivation (poyoliv, weeding, application of fertilizers, etc.) with a view of dovedeyonija them to a maturing stage, [90] when they become prigodyony for manufacturing of narcotics. These actions also form the ended corpus delicti nezaviyosimo from, whether have reached shoots of a stage of maturing or not, whether harvesting etc. has taken place

Besides, according to M. H Rustambaeva, along with crops and cultivation under kultivirovaniyoem it is necessary to understand also perfection of technology of cultivation narkotikosoderzhashchih cultures, increase of their productivity, development of stability to adverse weather conditions, deducing of new grades, care of wild-growing plants (having watered, soil loosening) etc. [91]

On a design the considered corpus delicti – formal, i.e. the question on responsibility here does not contact approach of certain consequences. The crime admits ended if the fact of crops takes place, cultivation or kultivirovanija the specified plants and cultures without the permission of the authorised bodies, irrespective of the subsequent vshoda or growths of plants and cultures.

In a design of the considered corpus delicti such sign, as the purpose of reception from the grown up plants of narcotics or psychotropic substances for personal consumption or for sale does not contain. It is a blank has been eliminated by the Decision of Plenum of the Supreme Court of Republic Uzbekistan which specifies: «if crops or cultivation narcocontaining rasyoteny is interfaced to the subsequent manufacturing, storage, transportation, transfer with a sales objective, and equally sold, proyodazhej narcotic substances, such actions follows kvayolifitsirovat under cumulative offences, predusmotyorennyh article 270 and corresponding articles UgolovYOnogo of the code». [92]

The perpetrator, the narcotics connected with illegal circulation or psychotropic substances, the responsible persons who have reached of 16-year-old age are. However structures of some kinds of crimes provide approaches of responsibility from 14-year-old age (item 271 UK RUz). In a number cases as the perpetrator the special subjects who have taken advantage of the official position at fulfilment of these acts can act. So under item 275 UK RUz it is possible to make accountable only official or other person which according to the work charged to it is obliged to observe the established rules at the reference with narcotics and psychotropic substances.

The physical responsible person, both private, and the official can be the subject kultivirovanija the cultures forbidden to cultivation. However the qualifying sign for the special subject as the official in an investigated crime is absent, that in our opinion, undoubtedly, is an essential lack. At presence such qualifying sign qualification on set with malfeasances was not required.

The subjective party of a crime is characterised by fault in the form of the express intent. Hence, do not form the corpus delicti the specified actions made without intention kultivirovanija of cultures forbidden to cultivation (for example, sprouts by mistake opijnogo a poppy or a hemp instead of garden cultures – cucumbers, a tomato, etc.) . Similar confirms also M.L.Homenker, having specified, that «the person who did not understand that gets narcotic substances does not come under to the criminal liability or grows up narcocontaining cultures». [93] However, the error guilty concerning the name of narcotics or narkotikosoderzhashchih plants does not influence a legal estimation of its illegal acts, M.M.Kadyrov considers. So, if the person had intention to make hashish, and has actually made marihuana or it intended to steal from a drugstore morphine, and instead of it has wrongly stolen a Dimedrol, or guilty instead of opijnogo a poppy grows up Indian or southern arhonskuju a hemp thus the error has no legal effect for attraction guilty to the criminal liability for considered crimes as they enter into a circle of the actions forbidden by the law connected with drugs. [94]

For qualification of actions of the guilty has znacheyonija no committing a crime purpose. Motives of a crime also can be various and on qualification of act of influence do not render.

Manufacturing of narcotics or psychotropic substances (responsibility for which it is provided item 273 UK RUz with a sales objective, and item 276 UK RUz accordingly without a sales objective) is process similar with kultivirovaniem the cultures forbidden to cultivation in the sense that these actions form the subsequent subject of criminal trespasses connected with its illegal circulation. Thus, in our opinion for legal codification of criminal offences on a stage and a contiguity of fulfilment of socially dangerous acts, from the point of view of a legal definition, and also for correct differentiation of responsibility manufacturing (which includes processing, manufacture, etc.) follows And kultivirovanie the cultures forbidden to cultivation, i.e. all stages, kinds and ways of manufacturing of narcotics and psychotropic substances to allocate in the separate corpus delicti and to strengthen responsibility. Similar unification in our opinion, will positively affect from the point of view of justice of the established punishment, and also will be justified with a position of legislative technics.

Investigated article 270 UK RUz contains three qualifying and especially qualifying three elements essential to the offence.

Qualifying signs of a part 2 items 270 UK RUz provide responsibility for kultivirovanie the cultures forbidden to cultivation, made: the person who has earlier committed a crime, constituting illegal circulation of narcotics or psychotropic substances; on preliminary arrangement by a group of persons; on the area of average size.

One of defining qualifying signs of analyzed crimes is frequency. For frequency it is characteristic soversheny the person not less than two crimes. The given crimes can be homogeneous or diverse. Homogeneous admit fulfilment of crimes provided one articles or parts of this article (for example, numerous kultivirovanie the cultures forbidden to cultivation). And fulfilment of different crimes (for example, kultivirovanie the cultures forbidden to cultivation and involving in the use of narcotics or psychotropic substances), with a time interval and independent intention for each subsequent crime admit diverse. A difference in time and the newly arisen intention between the first and the subsequent crimes characterise frequency. In this occasion we are solidary with M.M.Kadyrov's opinion which in turn do not agree with opinion K.SH. Kurmanova, specified, that for frequency has no value that circumstance, that the previous case of committing a crime has been found out simultaneously with the subsequent, i.e. crucial importance here has not time of detection of separate crimes, and the fact of fulfilment by the criminal of several concrete crimes. M.M.Kadyrov disagreeing with K.S.Kurmanova's given point of view, has specified that similar definition of frequency of crimes contradicts definition of the given legal concept of the criminal law theory according to which, for frequency the difference in time between the first and the second perfect crimes is necessary, each of which is besides covered by independent intention of the guilty. Only at set of these circumstances it is possible to speak about frequency. [95] however, the given actions do not form frequency if have expired limitation periods for the previous crimes or a previous conviction of the person is extinguished or removed in a statutory order. Judicial-investigatory practice testifies, that the attention to it is not always paid at qualification of crimes to the given qualifying sign. So, for example, were incorrectly kvalifitsirovanny actions of Item A on point "and" parts of 2 articles 270 UK RUz as for kultivirovanie the cultures forbidden to cultivation by the person, before committed a crime constituting illegal circulation of narcotics or psychotropic substances. By court of Item A has been recognised by guilty of fulfilment of crimes under following circumstances: on June, 16th, 2008 during operation «Black poppy» by employees of the Ministry of Internal Affairs of Republic Karakalpakstan 426 bushes on the area of 23,987 sq. metres of a narcocontaining plant of "hemp" were revealed in territory of the house of the citizen of Item A living along the street Ornek, cities of Nukus.

The decision of Nukusky city court on criminal cases from September, 22nd 2008 court has explained, that actions of Item A were incorrectly kvalifitsirovanny because under point "and" ch. 2 items 270 UK RUz it is necessary to qualify cases when the person, earlier already made one of the crimes provided ch. 2, ch. 3 items 127 or item 270-276 UK RUz irrespective of the condemnation fact but provided that for the previous crime have not expired limitation periods or a previous conviction it is not extinguished and it is not removed according to item 78-79 UK RUz. Item A have been condemned earlier on ch. 1 items 270, ch. 1 items 276, ч.1 item 248 UK RUz the decision of Nukusky city court from 11.03.1995 years for three years of imprisonment. However 30.04.1999 its previous conviction has been removed on the basis of the amnesty certificate, thereby on the bases specified in item 79 UK RUz the citizen of Item A any more is not considered sudimym the person. Thus, actions of Item A are necessary for qualifying on ch. 1 items 270 UK RUz. [96]

Committing a crime the second time and in the subsequent, testifies to the raised danger of the person guilty, about presence at it steady antisocial orientation. At the same time the second and the subsequent crimes forming neodnokratnost, are more socially dangerous, as they can do the big harm bolshemu to quantity of sustained etc. [97]

Structures investigated by us have kindred offences which in some cases encroach on the identical or similar direct objects made with the identical form of fault and similar motives, for example theft (item 169 UK RUz) and illegal occupancy by narcotics or the psychotropic substances, made guilty by theft (ch. 1 items 271 UK RUz) so, in both cases as object of encroachments acts valuable interests, however fulfilment of the given crimes do not form frequency, and form cumulative offences as considered crimes differ from each other a criminal trespass subject. Besides frequency do not form also a crime which subject same drugs from the beginning up to the end were. For example, if the person has sown and has grown up opijnyj a poppy, then of it has made a drug ready to the use and subsequently has sold to its other person similar actions do not form frequency, and are the ended independent crimes.

kultivirovanie, that is illegal crops or cultivation of narcocontaining plants in which two and more persons who have in advance agreed about its joint fulfilment participated, form signs of the objective party of the corpus delicti provided by the item ch. 2 items 270 UK RUz.

So, according to G.I.Bajmurzina committing a crime by several persons usually testifies to rather raised danger, than committing a crime by one person. Association of efforts of several persons for committing a crime not only facilitates criminal design realisation, but also allows to cause quite often heavier damage to interests of the person, a society or the state, to resort to more refined ways of achievement of criminal result and receptions of concealment of traces of a crime. [98] M.M.Kadyrov notices, that in comparison with an encroachment made individually, partnership is more dangerous also that in the conditions of arrangement deterrents of human behaviour are weakened, becomes ripe readiness for a crime faster, ways of acts and receptions of concealment of their traces become more refined, is more often caused heavy physical and a material damage. [99]

Thus, it is necessary to understand as preliminary arrangement by a group of persons sovmeyostnoe deliberate participation of two or more persons in nezakonyonom kultivirovanii narkotikosoderzhashchih cultures or the plants containing psychotropic substances, thus arrangement as was already ukazanno should take place before direct performance of the objective party of a crime. If arrangement has arisen at the moment of direct realisation of actions qualification on the given point is impossible. However the given circumstance should be considered by court at awarding punishment as the aggravating circumstance on the basis of the item « M »item 56 UK RUz. In practice, as a rule, criminal acts on illegal crops or cultivation narcocontaining a plant are impossible without preliminary arrangement. In an opposite case each of participants should bear responsibility only for concrete actions made by them personally. Besides these persons should possess signs of the perpetrator. So, irresponsible persons and the persons who have not reached age with which there comes the criminal liability, into group structure legally do not enter, though actually they can directly participate in illegal cultivation of narcocontaining cultures. N.N.Lunin which adheres to the opposite point of view considers, that participation in committing a crime of two and more persons allows to avoid of some the obstacles arising in the course of committing a crime. He believes, that in practice criminals quite often use juvenile in the given purposes instead of to avoid the criminal liability owing to their age. Considering the given circumstance, considering, that only so it is possible to commit a crime, the adult criminal involves in group of such persons, and its intention is directed on committing a crime by a group of persons. [100] same opinions adhere also to A.P.Sevrjukov who considers, that in similar cases of action of the participant of a group crime qualifications as made come under in the group way regardless of the fact that other participants of a crime have not been involved in the criminal liability in view of their diminished responsibility, juvenile age or on other statutory bases. [101] it is solidary with these opinions and A.A. Bakradze, specifying that in similar cases it would be necessary to estimate a crime as made by a group of persons as, on the one hand, without participants of group, criminal liability subjects, in general it would be impossible to commit a crime, and with another – justice from the point of view of the victim will not be restored, if act is not qualified as made by a group of persons.

The measures in our opinion specified by authors are not justified, introduction of similar forms of partnership in quality of qualifying signs for aggravation of punishment by a recognition as perpetrators of persons who to all signs specified in the Chapter IV UK RUz them cannot be. In cases when the person, uses minor (insane persons, animal) for committing a crime vovlekatel should bear responsibility as the executor. Besides if the full age person has involved the minor in structure of criminal group it comes under to responsibility on set of a corresponding part of investigated item 270 UK RUz and ch. 3 items 127 UK RUz providing responsibility for involving of minors in a crime, that already in itself will provide more severe punishment.

Criterion for definition of gravity of punishment and an establishment of corresponding responsibility by the given kind of a crime, are the size of the area of illegal crops narcocontaining a plant.

For qualification of actions guilty of the criminal code following sizes of the area of crops are established: so, for impeachment on ch. The size of the area of crops should not exceed 1 item 270 UK RUz 250 sq. m., responsibility comes under the item "in" ch. 2 items 270 UK RUz for kultivirovanie the cultures forbidden to cultivation on the area of average size if crops or cultivation of such cultures has taken place on the ground areas in the size from 250 to 1000 sq.m., and point "in" ch. 3 items 270 UK RUz are established by especially qualifying sign as kultivirovanie the cultures forbidden to cultivation on the areas of the big size, that is crops or cultivation of such cultures on the ground areas in the size of 1000 and more sq.m.

Especially qualifying signs ch. 3 items 270 UK RUz provide responsibility for kultivirovanie the cultures forbidden to cultivation, made: the expecially dangerous recidivist; the organised group or in its interests; on the area of the big size.

The expecially dangerous recidivist according to ch. 3 items 34 UK RUz can be recognised the person on the court sentence, having a previous conviction for a deliberate crime and again condemned for a deliberate crime to imprisonment for the term of not less than five years.

As criteria of a recognition of the person the expecially dangerous recidivist the legislator uses degree of the social danger of deliberate crimes, neodnokratnost their fulfilment, degree of the social danger of the person guilty, and also imprisonment as a punishment kind.

Responsibility for fulfilment of crops or cultivation of narcocontaining plants by the expecially dangerous recidivist, is applied only in cases when the person has been recognised in a statutory order by the expecially dangerous recidivist before fulfilment of the given crime (ch. 7 items 34 UK RUz). Hence, if guilty admits the expecially dangerous recidivist at a legal investigation in connection with fulfilment of a crime by it for which it is involved in the criminal liability the court cannot qualify in this case sodejannoe on point of article providing responsibility for a crime, made by the expecially dangerous recidivist. Besides ch. 4 items 34 UK RUz define, that by consideration of a question on a recognition of the person the expecially dangerous recidivist previous convictions on sentences of vessels of other states can be considered.

Fulfilment of the acts provided by the item ch. 3 items 270 UK RUz the organised group or in its interests differ the raised danger to a society as raises possibility of successful realisation zaplaniroyovannyh acts, thereby injuries to a society, goyosudarstvu, persons.

In connection with specificity of criminal actions made in partnership special interest among lawyers of theorists and experts causes a question on their qualification, establishments of concrete borders and signs of the organised groups. The problem urgency is caused by that in practice it is difficult enough to establish exact criteria for reference to this or that form of "criminal group». As truly approves R.N.Sudakova, the organised group acts as an initial link of the organised crime. [102]

In the legal literature there is no uniform universal interpretation of concept of the organised group. So, according to L.D.Gauhmana and S.V.Maksimova, the defining sign of the organised group characterising its stability, presence of the organizer or the head of group is. The organizer creates group, carrying out selection of accomplices, casts between them, establishes discipline, etc., and the head provides the purposeful, planned and harmonious activity as groups as a whole, and its each participant. [103] this sign G.L.Kriger, specifying that the organised group, as a rule, has the leader (leader) confirms also, constant "kernel", a generality of criminal intents. [104] it is unconditional, this sign is one of the cores defining the organised group, but not to the main things and in our opinion not obligatory as the organised group can exist and without the organizer or the head. The basic sign of the organised group in our opinion is its stability. About stability of the organised group, according to A.V.Naumov, the special order of the introduction into it, submission to group discipline, stability of its structure and organizational structures, unity of its members, a constancy of forms and methods of criminal activity, narrow criminal specialisation of participants can testify. [105] besides, the Higher degree of jurisdiction of Republic Uzbekistan gives the basic criteria for qualification of criminal group as organised, such as: Its stability, presence in it of the organizer, aiming on numerous, as a rule, fulfilment of crimes, planning and working out of details of a crime, raspreyodelenie roles of each participant, technical osnashchenyonost, acceptance of measures on crime concealment, podchineyonie to group discipline and instructions of the organizer preyostupnoj groups and so on, [106] and about stability of group can testify, in particular, preliminary planning of criminal activity, preparation of implementers of criminal intention, selection and recruitment of accomplices, cast between them, maintenance of measures on concealment of crimes, submission to group discipline and instructions of the organizer of criminal group. [107] Specified by Plenum criterion do not cause doubts, however in our opinion such sign as numerous fulfilment of crimes at all is not the core and the more so obligatory as the organised criminal group can be organizovanna for fulfilment of all only one crime, such as for example act of terrorism or a bank robbery. Similar process of preparation demands considerable time, training, financial security, and also search of necessary technical or other equipment.

Under stability of the organised criminal formations, according to M.Abisatova it is necessary to understand their ability to be protected, restored and continue criminal activity under the influence of external factors – actions of law enforcement bodies and competitors. The definition made by the author is result of research of similar criminal forms of partnership. So, in its opinion stability of the organised criminal group is reached and provided with the combined action of accomplices directed on forming of system of own protection against competitors, state and public control. Groups on preliminary arrangement of such protective system have no, that allows to distinguish more confidently them from the organised criminal groups to this sign. Hence, if the criminal structure possesses only elementary signs of organisation, characteristic for any deliberate joint criminal activity (presence of the leader, cast, stability of structure, planning, a constancy of forms and methods of criminal activity, etc.) But has no system of own protection against external influences and that cannot resist to them, according to M.Abisatova it means, that it is not steady, and consequently does not concern the organised criminal formations and it is a question of group on preliminary arrangement. [108] signs of stability of the organised criminal groups specified by the author, undoubtedly, have the big theoretical value. However in our opinion their practical application in judicial-investigatory practice will be created by considerable difficulties in their account at qualification of the given forms of partnership. Besides to prove presence at the organised criminal group of similar "immunity" in practice it will be difficult. In a case of an absence of proof of these signs, guilty will bear softer punishment, as committing a crime by a group of persons on preliminary arrangement. The signs resulted by the author consisting of system of various protection up to acquisition of corrupted communications in the state bodies etc., in our opinion nevertheless concern criminal societies, thereby excluding responsibility of the same small on the substance of the groups which do not have similar stability. In our opinion, at definition of criminal forms of partnership it is enough to apply set specified above signs so in case of absence of one sign, but in the presence of another in practice it is possible to distinguish the organised criminal group from other forms of partnership simply enough and accurately. Thereby it is represented expedient to add all possible signs of the organised criminal groups since the law does not establish all signs of the organised group formulated by the theory and confirming the solvency in practice. So, B.M. Nurgaliev allocates obligatory and facultative signs of the organised criminal group where to number obligatory by it are carried: association of two and more persons; stability of existence of group; long duration of existence of group; unity of members of group; planiruemost crimes (crimes); the creation and functioning purpose – reception (extraction) of the greatest profit (the illegal income, superincomes) for maximum the short term; presence of the organizer, the leader. The author carries to number of facultative signs: hierarchy of criminal group; differentiation of functions between its participants (including across); specialisation of sphere or an activity direction; presence of "social insurance" of members of group, intragroup material means; measures on safety maintenance; informal norms of behaviour; maintenance of rigid discipline; nonparticipation of leaders in concrete criminal acts; « Washing up »the money, extracted criminal by; the fulfilled communication system, conspiracies and vzaimokontrolja; armament; technical equipment; presence of communications with the corrupted representatives of governing bodies; neutralisation of the control of law-enforcement and supervising bodies; formation of groups on national, zemljacheskim, to related signs etc.; presence of international contacts; system of sanctions and encouragements. [109]

The signs of stability besides specified above such as ability to be protected, restored and continue criminal activity of the organised group, and also presence of the corrupted communications in the state bodies as already we specified, are more similar to signs of such form of partnership as the criminal society. It confirms also R.B.Kulzhakaeva, specifying that unity of the criminal society is provided with presence of the established chain of hierarchical relations between structural criminal divisions, careful conspiracy, scrupulous planning of crimes, presence of corruption communications, protection and protection systems etc. [110]

Accordingly most dangerous of all forms of partnership is the criminal society. As ukazanno in ch. 5 items 29 UK RUz the criminal society admit preliminary association of two or more organised groups for employment by criminal activity. So, according to M.H.Rustambaeva criminal society signs are: 1) stability and unity of its members; 2) association on the basis of the general criminal designs; 3) hierarchical structure; 4) unlike the organised group where two and more persons for realisation of criminal activity are consolidated, in the criminal society the organised groups are consolidated some. The organised criminal group is structural division of the criminal society. [111] results of research testify that narcobusiness, contraband for today are the most profitable kinds of the organised criminal activity. [112]

The crimes constituting illegal circulation of narcotics or psychotropic substances do not contain qualifying signs of fulfilment of crimes in the Criminal code the criminal society. Moreover judiciary practice actually does not know cases of fulfilment of investigated crimes the criminal society. This results from the fact that the criminal law provides responsibility only for the criminal society organisation, and also for maintenance of its existence and functioning (item 242 UK RUz), but not for fulfilment of concrete criminal acts as a part of the criminal society that interferes with attraction guilty to responsibility participating in interests of the criminal society. As such crimes make the organised groups which are a part of the criminal society, instead of all community as a whole, simultaneously, that in sight of law enforcement bodies the separate organised groups which members can and not know get at the best, that they operate as a part of the criminal organisation.

So, on ch. 1 item 242 UK RUz we can make accountable only organizers, heads, and also persons providing existence and criminal society functioning, persons concern the last which can and not make crimes in its structure but, providing the criminal society is material, is information, technically or any other support. Thereby ch. 1 item 242 UK RUz excludes responsibility of persons participating and committing crimes in the criminal society or in its interests. Responsibility for participation of such persons contains in ch. 2 items 242 UK RUz, however similar participation are possible in case the given persons are participants not the criminal society, and the armed group. Thus, on ch. 1 items 242 UK RUz if strictly follow the letter of the law we can to make accountable persons for creation or a criminal society management, but not for participation in the criminal society and fulfilment of concrete crimes by the given community.

Hence, in our opinion it is expedient to establish responsibility in ch. 1 items 242 UK RUz not only for creation and a management, but also for participation in fulfilment of crimes by the criminal society. Considering group character of fulfilment of crimes of narcotics constituting illegal circulation or psychotropic substances, conspirators come under to the criminal liability for fulfilment of the acts provided by item 246, item 270, item 271, item 273 UK RUz on set from item 242 UK RUz. Or as a variant, we suggest to establish qualifying signs of fulfilment of crimes the criminal society in the specified crimes, and in article 242 UK RUz as before, to provide responsibility only for creation, a management and criminal society maintenance. Besides we consider, that wide application of similar qualifying signs probably and in other crimes that will positively affect in struggle against the organised crime.

One of modern versions of criminal associations are legally existing legal bodies – firms, corporations, societies, etc. which activity can be partially or completely criminal.

However a unique blank of impeachment of such criminal forms is that the criminal legislation unlike administrative does not establish responsibility of legal bodies.

Criminal character and degree of the social danger of activity of legal bodies, in our opinion, requires today a criminally-legal estimation as falls outside the limits possibilities of is administrative-legal influence. The social danger of perfect acts is considerable above and non-comparable by the legal body to similar criminal activity of physical persons.

Thus, in our opinion it is necessary to expand concept of the perpetrator, having included in it legal bodies who can represent various forms of partnership, such as the organised groups or the criminal organisations.

So, under the statement of J. Fletcher and A.V.Naumov the recognition of legal bodies perpetrators does not mean deviation from a classical principle of the personal responsibility of the physical person for committing a crime as «responsibility of legal bodies can quite co-exist with a principle of personal guilty responsibility and supplement it». [113]

Necessity of an establishment of the criminal liability of legal bodies and corresponding expansion of system of punishment for similar subjects is supported by M.H.Rustambaevym. In its opinion, the penalties considerably exceeding the sizes, provided for physical persons, and also stay of activity of the legal person, its "liquidation" can constitute punishment system. [114]

M.G.Minenok which adheres to the similar point of view also considers that a recognition of the legal person as the perpetrator, gives the chance to apply, preliminary having added the system of penalties, such kinds of punishment, as liquidation of the legal person, restriction of territory of activity. Effective can be and nowadays existing kinds of punishment – the penalty, a confiscation, the debaring to be engaged in certain activity. [115]

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A source: Palvanov Marat Biembetovich. QUALIFYING SIGNS of ILLEGAL CIRCULATION of NARCOTICS OR PSYCHOTROPIC SUBSTANCES. The DISSERTATION on competition of a scientific degree of the master of laws. Tashkent-2011. 2011

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