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legal and actual errors: versions and influence on the criminal liability

The legal error is based on error concerning legal properties of made act, namely about its criminality or neprestupnosti, about qualification sodejannogo, and also about character (a kind, the size) the punishment appointed for the committed crime.

The similar approach to allocation of versions of the legal error svojstven to the majority исследователей2.

Some authors name only two versions of the legal error connected with representation of the figure about criminality or neprestupnosti of its behaviour («an imaginary crime» and opposite to it situa -

tsija) 3.

Some nuances of terminological character distinguishing positions of separate experts, do not influence, nevertheless, a question being. So, M.B.Fatkullina names two kinds of the legal error: 1) an error concerning the social danger and criminal illegality of made act (positive and negative); 2) an error concerning criminally-legal qualification and punishability of act [291]. At the same time on closer examination it is possible to conclude, as this approach assumes the same versions of the legal error which are named above.

So, an error concerning criminality or neprestupnosti act made by the person. As a matter of fact, in this case two situations, or two subspecies of the legal error are assumed. Here again it is possible to agree with M.B.Fatkullinoj's who has named them with a positive and negative error terminology.

The legal error, consisting that the subject, having made actions which are, from the point of view of the criminal law, indifferent, considers their socially dangerous, gives the maintenance to a so-called imaginary crime (or a positive error). The error of the person who have made those or other acts, concerning their criminal illegality, representation about them as about quasi-criminal has no jural significance. They are not socially dangerous, are not erected by the legislator in a rank of a crime and cannot attract the criminal liability. Here pertinently to address to the position containing in item 3 «a legality Principle» UK the Russian Federation: the act criminality, and also its punishability and others ugolovnopravovye consequences are defined by the Criminal code (a known principle - «nullum crimen, nulla poena sine lege»). B.V. Volzhenkin with reference to an analyzed situation wrote, that «erroneous representation of the subject that its act is a crime, naturally, does not give any bases for attraction of this person to the criminal liability...

«The imaginary crime» cannot entail the criminal liability owing to positions of item 8 UK »1.

So, if the person, having found a treasure and having appropriated it, believes, that has committed a crime, its fears concerning possibility to be involved in the criminal liability are groundless, as operating UK the Russian Federation does not provide punishability of assignment of found another's property.

The relation of experts to the named situation of the legal error unequivocally, for the clear reasons of discussions here cannot be.

The legal error can be based on error of the person concerning legitimacy of actions made by it while actually they are socially dangerous and admit criminal the criminal law [292 [293].

As is known, from the moment of the introduction of the criminal law into force it, under the general rule, should be applied concerning all socially dangerous acts which are provided by it as the criminal. The Russian legislation recognises that since the specified moment zapreshchennost acts is known for all and to everyone. The presumption of knowledge of the law is based that laws indulge in general publicity by publication in sources accessible to the population [294]. Thus, it is supposed, that «ought - shchim in the image the published law is known for all and from the moment of its introduction into force comes under to observance by all» 1.

This presumption underlies activity of law enforcement bodies at the decision of a question of attraction of the person to the criminal liability for socially dangerous act made by it recognised as a crime. The criminal law, thus, adheres to a principle «insignificance (including neizvinitelnosti) the legal error in its absolute -

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But the categorical form ». At the same time there are all bases to doubt justice and firmness of such categoriality.

The knowledge each citizen of corresponding positions of the law (including criminal) is carried by some authors at all to presumptions (that is to assumptions which can be and are confuted; to the positions conditionally accepted for true [295] [296] [297]), and to axioms [298] (to the true judgements which incontestable and are not requiring proofs [299]). Accordingly, according to such approach the fact of knowledge of the law does not demand an establishment in case of fulfilment by the person of a crime.

At the same time sensible practicalness prompts, that the assumption of knowledge all the law all the same represents a presumption for under certain circumstances it can be confuted. Complexity and extensiveness of a legal matter, dynamism of its change, discrepancy of some standard positions, an illegibility and ambiguity of variety of legislative formulations, an abundance blanketnyh dispositions (especially, for example, in the norms providing responsibility for crimes in sphere of economic activities, for ecological crimes) call into question absoluteness and a full irrefutability of the named assumption. Presence of the specified circumstances or essentially complicates process of acquisition of knowledge of the law, or reduces possibilities of due orientation in weight of a standard material, or as it is fairly marked in the special literature, «reduces probability of adequate perception of the maintenance criminally-rules of law» 1.

Besides, subjectivity of the legislator, display of conjuncture - by it nosti in process normotvorchestva quite often lead to criminalisation of the acts which social danger cannot be recognised by obvious.

One more circumstance interfering perception of a presumption of knowledge of the law as a certain absolute, the order of the introduction of criminal laws in force from the moment of their official publication is become in last years traditional. Not giving citizens of possibility preliminary (before coming into force) to familiarise with corresponding standard positions, to comprehend their maintenance, legislator puts the population in rather difficult situation fraught with fulfilment of offences. As often enough in the course of a modern correcting of the criminal law it is a question not of traditional criminal trespasses, the acts which social danger is obvious, and about enough specific (in particular, crimes in economic activities sphere, the encroachments connected with infringement of any rules, and so forth).

In this connection still M.S.Strogovich, A.A.Piontkovsky, V.A.Tumanov and A.A.Tille specified on oproverzhimost presumptions of knowledge of laws, from -

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ritsaja its absolute character. M.S.Strogovich, in particular, wrote, that oproverzhimost presumptions of knowledge of the law — «it is the matter of fact (questio facti), solved in each separate case depending on concrete being - [300 [301] telstv affairs» 1. A.A.Tille considered, that the given statement requires specification, and specified: «... oproverzhimost presumptions of knowledge of the law — a question not only the fact, but also the right. Chances when the guilty person under objective causes (the subjective reasons are not excluded also) did not know and could not know about illegal character of the actions» [302 [303] [304].

Some modern researchers specify in refutable character of a presumption of knowledge of the law (for example also, A.I.Rarog, S.E.Daniljuk,

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I.N.Gorjachev, M.B.Fatkullina).

So, in unusual cases when the person did not know about criminal character of the act made by it and obviously had no possibility to possess such knowledge, and the social danger of a corresponding encroachment was not obvious, it is necessary to recognise, that the similar error excludes the criminal liability. Under similar circumstances absence of awareness about zapreshchennosti acts by the criminal law, having character of pardonable error, is harmoniously combined with absence of comprehension of the social danger sodejannogo, that is fault.

In the special literature examples of such exclusive situations are resulted: fulfilment of socially dangerous act in the absence of awareness concerning its illegality the foreign subject who has arrived on state territory, its residing essentially differing from the country by a political system, religion, customs, an accessory to other legal system; absence of knowledge of the established criminally-legal interdiction at the person, long time sojourning with geological party in the remote areas in the absence of corresponding sources информации1. It can be and unlawful conduct of some socially not adapted categories of persons.

The error of the subject concerning a kind and the size of punishment which can be appointed for the committed crime, has no jural significance. If the person is informed about zapreshchennosti act made by it, realises its social danger (even if it for it is not obvious, but it is established by the legislator), but, despite of it, makes the criminal trespass, it comes under to the criminal liability in accordance with general practice. Neither the presumption of knowledge of the law, nor the intellectual moment of the maintenance of fault do not demand awareness on exact limits of punishability of a made encroachment or comprehension of the given circumstance. The person basically is informed on such legal effect of committing a crime, and it is quite enough this abstract knowledge for its attraction to responsibility. Therefore such error cannot neither destroy a presumption knowledge of the law, nor exclude fault in act of the person.

To a legal error version as it was marked, it is necessary to carry and an error in qualification sodejannogo. It is formed on the basis of error of the person concerning a criminally-legal estimation of the actions [305 [306]. Such error, as well as incorrect representation about punishability limits, does not influence a criminally-legal estimation of perfect act on the bases specified above.

Earlier the conclusion has been drawn, that comprehension deducing zapreshchennosti for frameworks of the maintenance of fault and its correlation with a principle «ignorantia juris nocet» («ignorantia legis non excusat») demands made act by the criminal law at a legislative regulation of positions about legal and the factual error of their standard "cultivation" under different heads UK

РФ1. In this connection it is offered to add UK the Russian Federation with article 141 in which it is necessary to formulate corresponding positions. In item 14 UK the Russian Federation the crime is defined as forbidden by the criminal law (that is criminally illegal) act, and the legal error is caused by error of the person concerning this circumstance.

«Article 141. The Legal error

1. The legal error caused by error of the person concerning criminality of act made by it, does not influence the decision of a question on the criminal liability.

2. In cases when the person did not know about criminal character of act made by it and on circumstances of business obviously could not know about it, and the social danger sodejannogo was not obvious, the criminal liability is excluded.

3. The legal error caused by error of the person concerning a criminally-legal estimation (qualification) of act made by it or limits of its punishability, does not influence on criminal otvetstven - nost »[307 [308].

The factual error is formed as a result of error of the person concerning actual character or actual consequences of its act. The Roman lawyers approved, that the ignorance of fact is the justification («ignoratio facti non nocet»). At the same time it is not always fair with reference to criminal activity. Only such ignorance of fact which is capable to eliminate fault, can act as the basis for the justification of the person for sodejannoe in full or partially (for example, for fulfilment of the qualified kind of the criminal trespass, not excluding, nevertheless, responsibility for act without the corresponding aggravating circumstance).

G ovorja about the factual error, it is necessary to remember A.N.Trajnina's statement that «the question on the error in fact has legal effect only when the error concerns the fact forming an element of the corpus delicti. The error in the circumstances which are behind frameworks of the corpus delicti, has no criminally-legal value (for example, the error in number of victims has no value at armed assault and so on)» [309].

The intellectual moment of intention of the perpetrator includes: comprehension of the actual facts concerning objective signs of the criminal trespass; a prediction of development of a causal relationship between its act and criminal result, and also possibility or inevitability of approach of the last.

Proceeding from it, in the special literature, as a rule, name following versions of the factual error: the error concerning properties of direct object of an encroachment or its subject; the error concerning properties of the sustained person; the error concerning actual facts, forming the objective party of the corpus delicti; the error concerning development of a causal relationship between actions of the subject and come criminal result (an error in causality) 2.

However on closer examination in offered classifications it is possible to see and specific lines.

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A number of authors considers as an independent category of the error, concerning softening or aggravating обстоятельств1.

So, A.I.Rarog, allocating an error in object of the encroachment, caused consequences, causal relationship development, names, besides, an error concerning the social danger of made act and concerning the circumstances aggravating responsibility.

Within the limits of the first of the specified specific versions the author allocates a situation in which the person, making socially dangerous act, wrongly considers its lawful, not knowing about any significant actual facts, actually, and giving sodejannomu criminal character. As an example imaginary defence is resulted and sold by the person of counterfeit money in the absence of comprehension of their this quality. The permission of the named situations depends, according to A.I.Raroga, from what was an error, - pardonable or guilty [310 [311] [312].

The second version assumes error rather nali -

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chija (absence) of the signs qualifying sodejannoe.

In a formulation of the named kinds of an error to us some discrepancy sees. The matter is that the error concerning the circumstances aggravating responsibility, it, by and large, too an error concerning the social danger, is more exact - its degrees. Therefore it is more logical to offer the first of the specified groups to call an error concerning the circumstances causing or predetermining the social danger of made act.

A.V.Naumov speaks about an error in object of an encroachment and an error concerning the actual facts forming the objective party of the corpus delicti. At the same time within the limits of these kinds with it are allocated dos -

tatochno traditional subspecies: with reference to the first - an error in a subject, in the person of the victim; to the second - concerning character of perfect act or omission; concerning approach of socially dangerous consequences, in causal relationship development; concerning a place, time, conditions, a way, tools and fulfilment means преступления1.

M.B.Fatkullina subdivides factual errors on two groups: influencing criminally-legal qualification and influences not rendering on it. Besides, it it is offered to classify them on positive and negative, proceeding from such circumstance, as comprehension by the person of presence or absence of corresponding circumstance. The error concerning presence actually absent circumstance is called as the positive error, an opposite situation - negative. The subsequent division of the errors influencing qualification sodejannogo, is traditional enough: an error in object, in its qualitative or quantitative characteristic; in a subject; in the person of the victim; concerning crime consequences; in causal relationship development; in means (tools) of committing a crime; in a way of fulfilment of an encroachment; in the conditions of committing a crime; in committing a crime time; in a place of fulfilment of an encroachment [313 [314].

In a circle of the errors which are not rendering influences on qualification, the author includes the error connected with an encroachment on homogeneous object; a simple error in a subject (for example, plunder instead of one narcotic of another); a simple error in the person sustained (murder A instead of B); in causal relationship development, but at approach all the same the result covered by intention of the guilty; an error in means with which help, however, the person achieves desirable result (erroneous use of a pistol of a TT instead of PM); a simple error concerning weight последствий1.

In our opinion, division of errors on influencing and not influencing qualification sodejannogo has a little artificial character. It was possible to present all possible situations within the limits of traditional allocation of kinds of errors with instructions on legal consequences of their establishment.

According to T.I.Bezrukovoj, it is necessary to allocate errors of the person concerning object, a causal relationship, and also presence or absence of facultative signs of the objective party of the corpus delicti - a way (both obligatory, and qualifying element essential to the offence) and qualifying circumstances [315 [316] [317].

However variety of versions of the error traditionally allocated in the theory of criminal law is not included in classification offered by the author by not clear reasons.

Rather difficult, multicomponent classification of factual errors is offered A.A.Kochetkovym. It allocates some bases for such ordering: 1) character of the mental relation of the subject to an external world, or an objective reality (errors available in it of certain circumstances or, on the contrary, in their absence); 2) error structure (simple and compound); 3) the relation of actual facts concerning which the subject is mistaken, to structure of a made encroachment (an error in the actual facts which are a part, and not entering into it); 4) structure of the general corpus delicti (an error in object, in signs of the objective party, in qualifying or privile - girujushchih the circumstances characterising the objective party; oshib -

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ki «an initial link» - in the subject which has sustained).

Respecting opinion and a scientific ingenuity of the author, nevertheless, we believe, that so difficult classification of errors is capable to aggravate only and without that uneasy position pravoprimenitelej, facing in practical activities with corresponding situations. Moreover, within the limits of the offered classification there are "imposing" fragments: so, a part of the errors included in the third group (errors in the actual facts which are a part of a perfect encroachment), as a matter of fact, in the majority repeat in the fourth.

Other classifications of factual errors were resulted and estimated in the previous paragraph of the given chapter диссертации1.

Having analysed approaches existing in the criminally-legal theory to allocation of kinds of the factual error, we offer own sight at their system:

1) the error based on error concerning circumstances, causing or predetermining the social danger of made act;

2) the error based on error concerning objective circumstances, being elements of the basic corpus delicti;

3) the error based on error concerning softening or aggravating circumstances (privilegirujushchih or qualifying signs).

It is offered to carry to the first group, first, those factual errors which position realisations «ignoratio facti non nocet» serve, that is exclude fault of the person who have made corresponding act. Specificity of such errors that they are connected with sphere, apparently, outwardly misbehaviour (the example resulted above with sale of counterfeit money by the person in the absence of comprehension of their this quality [318] [319] or use "blindly" the person as the courier for transportation of drugs), but the existence deprive of its status of a crime.

Secondly, it is the errors made by the person in a sphere of activity, perceived by it as lawful and objectively being that. At the same time the corresponding error paints it already in other tone, giving a criminal shade. A.V.Naumov is resulted a classical example of a similar error: the nurse of a procedural office, having mixed preparations, has made to the patient an injection not that medicine which was required therefore there has come death of the patient [320 [321].

In situations of such errors sodejannoe attracts responsibility for careless causing if the person expected possibility of approach of socially dangerous consequence, but without the sufficient bases to that self-confidently counted on its prevention or in case the person did not expect, but should and could expect possibility of approach of this consequence.

Thus, the first version of the factual error, as a rule, excludes fault and as consequence the criminal liability for sodejannoe or predetermines imputation for careless causing.

Situations of an error of the second and third group arise exclusively within the limits of realisation of deliberate criminal activity, that, certainly, is realised by the person making the corresponding encroachment.

The errors of the second group allocated with us formed on the basis of errors concerning circumstances, being elements of the basic corpus delicti, are diverse. Their classification is enough tra - ditsionna - an error in object, a subject, the person and properties of the victim, signs of the objective party (consequences sodejannogo, causal relationship development, a way, tools and means, conditions, etc.) 1. As the error can concern any objective sign of a made encroachment, the main thing to develop algorithm of qualification sodejannogo in a situation of the factual error generated by it, instead of to list all its concrete versions that is already enough thoroughly done in the criminal law theory.

The error in object is caused by error concerning the maintenance of those public relations on which the person encroaches. In such situation does not vary fault forms, but it is mentioned it concrete containing -

nie [322 [323].

As mark V.A.Yakushin and V.V. Nazarov, «the general rule at an error in object of an encroachment if these objects are protected various criminally-rules of law or even by the same norms, but the importance of object somehow affects responsibility limits, that the same object of influence which was covered by consciousness of the person at fulfilment of socially dangerous actions by it is made persons is. If it is objects of different structures sodejannoe it is impossible to qualify as completed crime as those public relations which were covered by intention of the person, have not undergone any influence, that is« those communications which should be, according to the person have not been broken off », broken off by a crime made by it. To make to the person actually come result without the mental relation to it it is inadmissible» 1.

Basically, such rule extends practically on all situations of the factual error, behind some exceptions.

Quite often error in object is interfaced to an error in a subject or the person of the victim as these signs frequently predetermine the maintenance and specificity of the public relation on which the encroachment is carried out.

For example, the person, carrying out illegal vylov fishes in the privatised pond in which there is its artificial cultivation by the proprietor, that is committing a crime, provided by item 158 UK the Russian Federation, being mistaken, believes, that encroaches on ecological safety. At an error in object of action guilty are qualified proceeding from an orientation of its intention. In the presented example is an ecological crime. In the special literature it is recognised, that as corresponding relations actually have not suffered, actions guilty are regarded as attempt at a corresponding crime.

In this connection the decision of the world judge of a judicial site № 132 Vyselkovsky areas of the Krasnodar territory which has condemned citizen T on ch is represented erroneous. 1 items 158 UK the Russian Federation by six months of correctional labour with deduction of 10 % of wages in the state income. The named citizen on September, 6th, 2009, using a rubber boat, left in a river reservoir Left Bejsuzhek, being in water use B, has established a network and has caught 152 crucians, 5 individuals of the white cupid, one sazan for a total sum 2 528 rbl. As follow from indications T, he did not know about a reservoir finding in an's using of proofs of awareness of the guilty

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About the specified fact in business is not present. At the same time, if the judge has applied a qualification rule sodejannogo in the presence of the factual error (in obek - [324] [325] those), it would not find the basis for attraction T to the criminal liability as the elements essential to the offence, provided by item 256 UK the Russian Federations, in act of the person are absent.

In other situation of an error in object (or, more precisely, errors in the person of the victim) sodejannoe it will be qualified as completed crime, despite error of the person. For example, the person, intending to take life A, is mistaken and kills B.Nalitso the ended murder as intention guilty to deprive of the person of a life is realised in full. So, a sentence of Vladimir provincial court SH.A. It is condemned for murder of brother SH.N. obshcheopasnym in the way. On business it is established, that the condemned had intention on murder K and, having accepted for it the brother SH.N., has killed in its way dangerous to a life of many citizens as at the moment of a shot from a gun in house Kochetkova, except the victim, there were also other persons. Thus, SH.A. Should bear responsibility for the ended murder as for intention presence at murder comprehension by the person of that circumstance is necessary, that as a result of actions made by it the death of the person can follow. Thus as a life To. And life SH.N. Is legally equivalent object [326].

As error example business can serve in properties of the sustained person on charge N, the Krasnogvardejsky regional people's court of of Moscow condemned by a sentence on ch. 1 items 119 UK RSFSR (item 134 UK the Russian Federation). According to sentence N it is recognised by guilty of sexual connection with the person who has not reached the puberty, made at following circumstances. N in the evening has allowed to sit down in the car to unfamiliar girls - minor M, N The, K and S, and also before the acquaintance to it j M, N-va, To and V have been delivered to a place, pjatnadtsatiletnjaja S has changed to N on a forward seat. It has stopped the car and with the consent of S has made with it coitus. Then N has brought S home, having agreed with it about a new meeting. N, not denying fulfilment of coitus with S, as guilty itself in the shown charge did not recognise and has shown, that S and other girls at acquaintance to it said, that it about eighteen years. With. The tall, well physically developed girl. Therefore he did not doubt, that all of them, including S, correctly named the age, and at fulfilment of coitus with S he did not know and did not assume, that it has not reached the puberty. Indications N have confirmed girls M, N-va and V.Iz of the certificate sudebnomeditsinskoj examinations is seen, that S is really well physically developed, has growth 175 see, weight of 60 kg. Thus, N honesty was mistaken concerning age and achievement of puberty S that was promoted also by S.Poetomu plenum of the Supreme Court of the USSR, having considered case in a supervisory procedure order, has come to conclusion that N on ch. 1 items 119 UK RSFSR it is condemned unreasonably, the sentence of regional court and all subsequent judgements has cancelled, and business has ceased behind absence in its actions of the corpus delicti [327].

The error such interferes with imputation in fault of the sign connected with property of the victim, owing to absence of comprehension by the person of corresponding circumstance. It can result or in a criminal liability exception in general (as in earlier resulted example), or to a criminally-legal estimation sodejannogo without a certain qualifying sign. To illustrate the second of the named consequences of a considered error it is possible a following example.

So, F on the basis of rest «the Gold Taurus» in Tukaevsky municipal area of Republic Tatarstan after a party, having taken advantage of a helpless condition of the victim which slept and was in alcoholic intoxication, against its will and desire has made with it coitus. The age of the girl constituted 15 years of 7 months. By investigation agencies bodies to the defendant it is accused under the item « And »ч.3 item 131 UK the Russian Federation. However in session of the court it is not established, that the defendant knew about minor age of the victim or supposed, that to it 18 years were not executed. The defendant was not earlier a sign from the victim. Has got acquainted with it shortly before committing a crime, during a party with it did not communicate, the victim did not inform it on the age. On a party children and girls at the age from 18 till 23 years have gathered. In spite of the fact that the victim of 15 years of 7 months, on external data it looks the coeval of the witnesses who interrogated in session of the court and have reached of eighteen-year age. Under such circumstances, as it is specified in a sentence, actions of the defendant come under to a training for a new profession from the item"and"ч.3 item 131 UK the Russian Federation on ч.1 item 131 UK the Russian Federation [328].

Separate displays of the named kind of an error represent considerable complexities for pravoprimenitelej and generate sharp discussions in the criminal law theory. In particular, the error generated by error concerning pregnancy of the victim. The situation of representation of the person mismatching realities about presence at the woman of the named property Means.

So, the trial court on ch. 3 items 30, the item "g" ch. 2 items 105 and ch. 1 items 105 UK the Russian Federation it is condemned K-n, committed a crime under following circumstances: after victim K has informed it on pregnancy and has demanded money, threatening in default to declare in militia its rape by K Th, it has struck its bottle on a head and some times a foot on the person. When K has lost consciousness, it has thrown the victim a neck with a loop and has adhered to the handle of a shutter of the furnace. The victim has deceased on a scene as a result of mechanical asphyxia. By Forensic pathology it is established, that in a condition of pregnancy K was not.

The court of court of cassation has left a sentence without change. Assistant G eneralnogo in supervising representation asked a sentence and cassation definition to change the public prosecutor of the Russian Federation, having excluded from charge ch. 3 items 30, the item "g" ch. 2 items 105 UK the Russian Federation.

The presidium of the Supreme Court of the Russian Federation has satisfied supervising representation, not having seen cumulative offences in sodejannom K Th, and has excluded from judgements instructions on ch. 3 items 30, the item "g" ch. 2 items 105 UK the Russian Federation as the intention to K Th victim on the deprivation of life has been completely realised, as a result of its actions has come death of the victim. Therefore qualification sodejannogo as attempt at murder is represented to K Th излишней1.

The similar decision is accepted Presidium of the Supreme Court of the Russian Federation on business G, condemned by the trial court for its murder mnimoberemennoj concubines B on ch. 3 items 30, the item "g" ch. 2 items 105 and ch. 1 items 105 UK the Russian Federation [329 [330].

Thus, in the described cases the Supreme Court of the Russian Federation has not given to a subjective error of guilty any value. Moreover, in one of decisions on its presence the attention is not turned, that is represented not absolutely correct relation to a criminally-legal estimation sodejannogo. At the same time it is quite explainable, as the criminal law does not contain neither concepts of an error, nor the corresponding legal institution.

As to the special literature in it four various positions concerning the given situation are stated. The first group of authors believes, that sodejannoe in this case it is necessary to qualify as attempt at murder of the pregnant woman женщины1 (however murder as that in this case is ended). Others see here cumulative offences - the ended murder provided ch. 1 items 105 UK the Russian Federation, and attempts at murder of the pregnant woman - ch. 3 items 30, the item "g" ch. 2 items 105 UK the Russian Federation (at the same time in a considered situation one crime which qualification on set of two crimes breaks a justice principle is committed) [331 [332] [333]. The third suggest to estimate sodejannoe as ended pre -

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stuplenie, provided by the item "g" ch. 2 items 105 UK the Russian Federation (placing emphasis on the subjective relation guilty to a situation, authors ignore its objective maintenance). The fourth group of experts, as well as the Supreme Court of the Russian Federation, believes proved qualification on ch. 1 items 105 UK the Russian Federation [334] (here, on the contrary, the orientation and the maintenance of intention guilty are not taken into consideration).

So, all specified positions are represented not absolutely exact as they do not contain adequate reflexion of a situation. In this case we face an error in properties of the sustained person, representing itself as a sign qualifying act. Further author's vision of an estimation of a similar situation which, in our opinion, will allow to state more exact criminally-legal estimation sodejannogo in similar cases will be offered.

The error in an encroachment subject is based on error concerning properties and financially expressed characteristics of subjects within the limits of those public relations on which the person encroached. Versions of such error are:

The error predetermined by error concerning presence of a subject, actually absent at the moment of committing a crime, - in this case actions guilty are qualified, for example, as attempt at theft;

The error predetermined by error concerning quality of a subject (for example, it is illegally withdrawn as believes guilty, a foreign currency which actually appears counterfeit; the subject, according to guilty, possessing special art value, but actually by that not являющийся1 is abducted: the weapon is abducted, is functional not suitable for use though the guilty believes the return) - sodejannoe is qualified according to an orientation of intention guilty, but as attempt at a corresponding crime;

The error predetermined by error concerning an equivalent subject, - it does not change qualification. [335 [336]

In the special literature with reference to an error in a subject and properties of the victim the offer on allocation of situations with absolutely (certainly and rather (conditionally) absent either unusable victim or a subject [337] is stated. So, referring to opinion of some pre-revolutionary scientists, V.N.Vinokurov suggests recognise as nonpunishable an encroachment on absolutely (certainly) unusable subject (victim). In particular, the author means attempt at a corpse, suggesting to regard such actions as intention detection. It proves the opinion actual absence in the given situation of the public relation, the acting object of a crime which are a necessary element of the corpus delicti.

To join a similar position hardly it is possible. The error essence is expressed, including, and in perception the person as existing some absent at fulfilment of act of the facts by it and circumstances. In the specified situation the victim really objectively is absent, but an error - a category subjective. In perception of the person making act, in its consciousness the given circumstance acts as real. On this basis the intention which the person and tries to realise the actions is formed. The nonexistent subject or the victim do not allow to this process to come to the end, acting as objective obstacles for crime finishing up to the end. To recognise in a similar situation only intention detection it is represented not quite proved approach.

The error in a way of committing a crime is formed on the basis of error of the person concerning features of those receptions which it uses at committing a crime. Such error can change criminally-legal qualification of a crime. For example, the person believed, that secretly withdraws property, and actually present saw and

Understood, that the property is abducted. Qualification in this case is carried out proceeding from what way of withdrawal was covered by consciousness guilty, that is sodejannoe is regarded as theft.

The error in committing a crime means is generated by error concerning the means with which help the crime was committed. In the course of committing a crime along with suitable means can be used by mistake absolutely or rather unsuitable means. Thereof the result does not come, and actions guilty taking into account a concrete situation are qualified as attempted crime or preparation for it.

So, for example, by a sentence of the Ulyanovsk provincial court it is condemned S on item 15 and the item in"item 102 UK RSFSR (ch. 3 items 30; the item ch. 2 items 105 UK the Russian Federation). It is recognised by guilty that tried to kill state farm" old-May "SH operating the third branch in connection with performance of the official duties by the last. However the gun which S attempted upon murder of the victim, has appeared faulty. Presidium of the Supreme Court of RSFSR with such qualification согласился1.

If insignificant means with which help in general in no way it is impossible to commit a crime the actions made by similar means, have no criminally-legal maintenance is used. They have only kriminologicheskoe value as, inherently, testify to intention detection that causes of rendering on the person of preventive influence. In criminal law the considered situation is called as attempt with insignificant means [338 [339].

The error in character of consequences of criminal action is based, first, on error concerning presence or absence of criminal consequences. The person can believe, that the actions destroys or damages another's property, and actually it does not occur. Such actions (depending on concrete circumstances) are regarded as attempt or preparation for destruction or damage of another's property.

Secondly, it can be the error based on error concerning criminal consequences, their qualities and weight, including in its quantitative expression. Quite often such error forms an error in qualifying signs sodejannogo.

The error in a causal relationship is generated by error of the person concerning causal relationship development between act and the come result. Such error does not eliminate designedness of perfect actions as the person thus has a prediction as the actual facts concerning the objective party of a crime, and real possibility of approach of criminal result at certain development of a causal relationship. The error in causality in some cases can exclude only imputation of criminal result, that is fulfilment of the ended deliberate crime.

As error example business can serve in causal relationship development on charge N-va in the committing a crime, the provided item "in" ch. 2 items 105 UK the Russian Federation [340]. The crime is made under following circumstances: N e has come to the house aged N, the invalid of the first group, and has asked on credit money. Having been refused, it, having taken offence on N, has struck to it blow by a hammer to a head. Believing, that N is dead, N e has poured its gasoline and has set fire. According to the conclusion of forensic pathology the death of the victim has come from a poisoning okisju carbon. Hence, at the moment of arson N it was still live. Thus, N e wrongly believed, that the reason of approach of death N was the blow to the head of the victim put to it whereas the reason was other. In the given situation the error does not influence the decision of a question on criminal liability N-va.

The similar situation has developed and at fulfilment K of murder of citizen N. In connection with the occurred quarrel, testing to N hostility, K has made decision to deprive N lives. Realising criminal intention, K has put N fists and feet plural blows in a stomach, a thorax, the person and on a head. Then villages K on the victim from above, has seized N by a neck and has compressed fingers of hands, carrying out suffocation of the victim. After that K, believing, that N is still live, for the purpose of finishing of the criminal intention up to the end, taking a cord, has fastened on its one end a loop, has thrown with it neck N, upershis a foot in his head area, has tightened a loop on a neck of the victim. Then has thrown the free end of a cord through the top crossbeam of a back of a bed, has pulled the free end of a cord on itself so, that the victim has hung in a loop under weight of own body. Having convinced, that N is dead, K symitiroval its suicide and has left apartment of the victim. According to the conclusion of forensic pathology death N has come from the traumatic shock which has developed as a result of plural damages. Suffocation occurred already in agonalnyj the period or after death approach. Such conclusion is made on the basis of results of judicial-histologic research stranguljatsionnoj furrows at which signs of a compression of a skin without hemorrhages are found out only. In turn, K believed, that cause of death N was suffocation.

Admitted K the error based on error concerning original cause of death N, has not affected qualification sodejannogo. It is condemned by Satkinsky city court of the Chelyabinsk area on ch. 1 items 105 UK the Russian Federation [341].

The error of a considered kind took place and in the following situation.

S during quarrel with A, arisen because of the personal aversions, a knife available for it has caused sustained koloto-rezanuju a wound of a back surface of the thorax, getting into a belly cavity. Despite wound, A has made an attempt to escape, but S has pushed with his hands in a back. The victim has fallen to the earth the person downwards, villages S on A from above, blocking its weight of the body, and has tried to cut A.Ne's throat having managed to make it, S has gone to the victim a knife a head then has put it set of blows by hands and feet in a head and a trunk. Being afraid for the life, A pretended to be died. Believing, that as a result of its actions there has come death A, S for the purpose of concealment of traces of the committed crime an arson clothes on A, having caused to it thermal burns of a skin of a back surface of a trunk of 2-3 degrees the area nearby 1 % of a surface of a body. However the victim, having seized the moment when S has lost vigilance, has quickly risen on feet and has escaped.

By Korkinsky city court of Chelyabinsk area S it is condemned for attempt at murder - on ch. 3 items 30, ch. 1 items 105 UK РФ1.

Consequences of the named version of an error are dual: the person bears responsibility or for the neoterminated crime (if the error represents itself as the circumstance objectively interfering finishing of a crime up to the end), or for the ended encroachment provided that the error has not prevented criminal intent realisation in full [342 [343].

The factual error situation is necessary for delimiting from «an action deviation» (or deviations of object of influence) about what in detail enough there was a speech in dissertation section 1.2. In a considered case the object of influence deviates, and owing to it for the reasons which are not dependent on will guilty, harm is caused to other person [344]. As an example the following situation can serve: guilty of a house court yard purposefully shoots at the victim, but last unexpectedly bends to lift the thing which has dropped out of hands. The shot charge gets to other person who has left an entrance, having deprived of his life. In the conditions of possible occurrence of other people the shooting should and could expect similar result. In the presented case the cumulative offences that attracts corresponding qualification sodejannogo actually are formed: attempted crime within the limits of intention (that is attempt at murder) and careless injury (death of the victim).

If on circumstances has put (a similar situation, but in a deaf deserted place, on waste ground, in a taiga) at a deviation of object of influence it was impossible to expect approach of the specified consequences, is available attempt at murder and the innocent injury excluding the criminal liability.

The third group is constituted by the errors formed on the basis of error concerning softening or aggravating circumstances (privilegi - rujushchih or qualifying signs). If the person believes, that those are statutory, and actually they are absent, that, accordingly, qualification sodejannogo is carried out without their account. For example, the person, being sudimym for theft, again making theft in the presence of an outstanding previous conviction, wrongly believes, that the given circumstance is statutory as a qualifying sign of the named crime.

If the person, making act in the presence of qualifying or privilegirujushchih signs, it is not informed that they are provided by the law, the criminally-legal estimation sodejannogo should be carried out taking into account these signs. Such situations are very close with legal otttib - which as it is a question about predusmotrennosti or nepredusmotrennosti those or other circumstances the criminal law. However as the last are anyhow connected with the elements essential to the offence, concerning the certain facts (a consequence, a way, conditions, etc.), errors concerning them generate actual ошибку1.

If the person is mistaken concerning presence of circumstance which obviously for it is provided by the law in this case qualification will depend on a situation. If the crime is made at erroneous representation of the person about absence of qualifying signs available actually, sodejannoe should involve responsibility for fulfilment of the given crime without these qualifying circumstances [345 [346] [347].

If the person wrongly believes, that commits a crime in the presence of qualifying circumstance (for example, in its opinion, swindle in crediting sphere is made by it in the large size) which actually is absent (the size actually does not reach large), sodejannoe it is necessary to qualify as attempt at the swindle provided by item 159 UK, in the large size.

However it is represented, that such rule cannot be extended to all situations of a similar error. Earlier already there was a speech about a murder situation mnimoberemennoj women, the exit from which is practically impossible with use of existing criminally-legal means. Therefore us it will be offered to qualify similar cases referring to article regulating the factual error it is necessary for them to add UK the Russian Federation and which project it will be presented further.

As example of the error caused by error rather privi - an alloying sign, murder can serve at the excess of requirements of justifiable defence, made in a condition of "imaginary" defence (as a matter of fact, in the presence of an error in the conditions of committing a crime). In such situation the person wrongly believes, that operates in a justifiable defence condition, protection against an imagined encroachment actually is carried out. If the error has pardonable character that is if all conditions of incident gave the bases to the person to believe, that took place real посягательство1, damnified (at us - the deprivation of life) is estimated by rules about the justifiable defence and its excess [348 [349].

Plenum of the Supreme Court of the Russian Federation in the decision from September, 27th, 2012 №19 «About application by vessels of the legislation on the justifiable defence and injury at detention of the person who have committed a crime» with reference to the given situation in item 16 has specified: «it is necessary for Vessels to discriminate a condition of the justifiable defence and a condition of imaginary defence when there is no real socially dangerous encroachment and the person wrongly assumes its presence.

When conditions gave the bases to believe, that the real socially dangerous encroachment, and the person who has applied measures of protection is made, did not realise and could not realise absence of such encroachment, its actions should be considered as made in a justifiable defence condition. Thus the person who has exceeded limits of protection, admissible in the conditions of the corresponding real encroachment which have been not interfaced to violence, dangerous to a life of defending or other person, or with direct threat of application of such violence, comes under to responsibility for excess of requirements of justifiable defence »[350].

In item 24 of the named decision practically similar explanation concerning a situation of detention of the "imaginary" criminal contains.

So, S it is condemned that has killed D under following circumstances. D, being in a state of intoxication, about 24 hours has by mistake got through a window into house S, believing, that is house SH - its acquaintance. S, also were in a state of intoxication, has accepted D for the thief and began to beat it, has put it some blows by a wooden support for colours. From received physical injuries D has deceased.

From criminal case materials follows, that S, proceeding from concrete conditions, had all bases to believe, that to it in the house the criminal has got. However from business materials it is visible, that S began to put D blows to the head a stupid subject while the victim laid on a floor and already actually not only did not represent threat, but could not resist at all. Besides, the witnesses who have come running on noise, demanded, that With.

Has ceased to beat D.Poetomu the full court of the Supreme Court of the Russian Federation, considering the specified circumstances of business, and also that S, as well as., was in a state of intoxication, qualified crime S as murder at excess of limits necessary обороны1.

So, the error of the person who have made socially dangerous act, forming an error situation, influences the decision of a question on responsibility and its limits, on qualification sodejannogo, and also on awarding punishment. In the criminally-legal doctrine there are various points of view concerning kinds of errors, decisions of questions of qualification of a crime at their presence that should influence and on pravoprimenitelnuju to practice, essentially complicating its realisation. Therefore it is necessary to express solidarity with those authors which consider expedient to include in UK the Russian Federation article defining concept, signs, kinds of errors and formulating qualification rules sodejannogo at their presence [351 [352] [353]. We will remind, that such approach is inherent in much foreign UK about what it was spoken in the second chapter of the given work.

Having carried out the analysis of the questions, concerning legal and actual errors, their subspecies, we offer the formulation of the project of the norm regulating corresponding positions. We are solidary with opinion of the authors believing, that it should be article 28 UK the Russian Federation. So:

«Article 281. The Factual error

1. Deliberate fulfilment by the person of socially dangerous act in the presence of error concerning actual facts sodejannogo, the crime which have prevented finishing up to the end, attracts the criminal liability under article of the present Code providing responsibility for the committed crime, referring to a part with third of article 30 of the present Code.

2. If the error of the person who have deliberately made socially dangerous act, concerning actual facts sodejannogo was not an obstacle for crime finishing up to the end, the criminal liability comes for completed crime.

3. If the person who has made socially dangerous act, was mistaken concerning weight of possible consequences causing of heavier consequence by it, than was covered by its intention, attracts responsibility for careless causing of such consequence (if the person expected possibility of its approach, but without the sufficient bases to that self-confidently counted on its prevention, or if the person did not expect, but should and could expect possibility of approach of this consequence).

4. Deliberate fulfilment of socially dangerous act by the person mistaking concerning presence of the actual fact, provided by the present Code as a sign reducing the social danger sodejannogo (privilegirujushchego a sign), actually absent during committing a crime, attracts responsibility taking into account the given circumstance if the person did not realise and on circumstances of business could not realise an inaccuracy of the assumption.

5. Deliberate fulfilment of socially dangerous act by the person mistaking concerning presence of the actual fact, provided by the present Code as a sign raising the social danger sodejannogo (a qualifying sign), but actually absent during committing a crime, attracts the criminal liability under article of the present Code providing responsibility for the committed crime in the presence of the corresponding qualifying sign, referring to a part of fifth present article. In a situation of such error the court awards punishment by the rules provided by item 661 UK the Russian Federation »1.

We consider, that, offering edition of item 661 UK the Russian Federation («Awarding punishment in a factual error situation»), is necessary to be guided by the rules formulated by the legislator for awarding punishment for attempted crime in item 66 of the Code:

«Article 661. Awarding punishment in a factual error situation

1. Term or the size of punishment to the person who has committed a crime in a situation of the factual error, provided ch. 5 items 281 of the present Code, cannot exceed two thirds of maximum term or the size of the most strict kind of the punishment provided for the committed crime by corresponding article of the Special part of the present Code.

2. A death penalty and lifelong imprisonment to the person who has committed a crime in a situation of the factual error, provided ch. 5 items 28 of the present Code, are not appointed ».

There can be an impression, that the rules established in offered norms, izlishni, and at qualification and awarding punishment in the specified situation it is quite possible to be limited to positions of articles 30 and 66 UK the Russian Federation. However we believe, that for "cleanliness" of qualification sodejannogo in some, named above, concrete displays of such situation which are not keeping within to the full in named above «prokrustovo a bed» a criminally-legal estimation with use of the known criminally-legal means, corresponding innovations all the same are useful. Softer besides, is offered, rather than for attempt, an awarding punishment rule, to formuli - [354 [355] rovaniju which following reasonings have resulted. At attempt at the aggravated crime, not charged with error concerning presence of the circumstance raising degree of the social danger of an encroachment, the last objectively exists. In situations of the error caused by named error, qualifying sign actually is absent, being found only in imagination of the guilty. Level of the social danger of a crime objectively Is represented, that in the second case more low, as predetermines softer rule of awarding punishment.

Carried out in the given section of the dissertation research has allowed to come to a number of the conclusions. The tendency of reference of a presumption of knowledge of the law actually to the legal axioms having categorical character, is represented not quite proved. It is a presumption, that is the assumption which can be and it is confuted. In work the circumstances interfering perception of a presumption of knowledge of the law as a certain absolute are resulted. We express the consent with opinion of the experts giving to a presumption of knowledge of the law refutable character. Hence, in unusual cases when the person did not know about criminal character of the act made by it and obviously had no possibility to possess such knowledge, and the social danger of a corresponding encroachment was not obvious, it is necessary to recognise, that the similar error excludes the criminal liability. Under such circumstances absence of awareness about zapreshchennosti acts by the criminal law, having character of pardonable error, is harmoniously combined with absence of comprehension of the social danger sodejannogo, that is fault.

The error of the subject concerning qualification of the crime committed by it, a kind and the size of punishment which can be appointed, has no jural significance. Neither the presumption of knowledge of the law, nor the intellectual moment of the maintenance of fault do not demand awareness of the person on correct qualification sodejannogo and exact limits of punishability of a made encroachment or comprehension of the given circumstance. The person basically is informed on such legal effects of committing a crime, and it is quite enough this abstract knowledge for its attraction to responsibility. Therefore the error based on such error, cannot neither destroy a presumption knowledge of the law, nor exclude fault in act of the person.

Comprehension deducing zapreshchennosti for frameworks of the maintenance of fault and its correlation with a principle «ignorantia legis non excusat» demands made act by the criminal law at a legislative regulation of positions about legal and the factual error of their standard "cultivation" under different heads UK the Russian Federation. In this connection it is offered to formulate corresponding positions in item 141 UK the Russian Federation, having added with it the Code. In item 14 UK the Russian Federation the crime is defined as forbidden by the criminal law (that is criminally illegal) act, and the legal error is caused by error of the person concerning this circumstance. The project of edition of item 141 UK the Russian Federation ("Legal error") is offered in the work text.

As a result of consideration of the approaches presented in the criminally-legal doctrine to factual error classification author's vision of their system is offered:

1) the error based on error concerning circumstances, causing or predetermining the social danger of made act;

2) the error based on error concerning objective circumstances, being elements of the basic corpus delicti;

3) the error based on error concerning softening or aggravating circumstances (privilegirujushchih or qualifying signs).

It is offered to carry to the first group, first, those factual errors which position realisations «ignoratio facti non nocet» serve, that is exclude fault of the person who have made corresponding act; in - the second, the errors made by the person in a sphere of activity, perceived by it as lawful and objectively being that, but painted by error already in other tone giving to it a criminal shade.

Situations of an error of the second and third group arise exclusively within the limits of realisation of criminal activity that is realised by the person making the corresponding encroachment.

The conclusion and that as the error can concern any objective sign of a made encroachment is drawn, the main thing to develop algorithm of qualification sodejannogo in a situation of the factual error generated by it, instead of to list all its concrete versions. It is necessary to present it in the form of corresponding criminally-rule of law to which should add UK the Russian Federation. In work according to this conclusion the project of edition of item 281 UK the Russian Federation ("Factual error"), and also in development of its part by a heel - the project of item 661 UK the Russian Federation («Awarding punishment in a factual error situation») is offered.

See: Naumov A.V.Russian criminal law: a course of lectures. Volume 1: the General part.

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A source: Prokhorov Alexander Jurevich. ERROR INSTITUTE In ROMANO-GERMAN CRIMINAL LAW: KOMPARATIVISTSKY And TEORETIKO-APPLIED ASPECTS. The dissertation on competition of a scientific degree of the master of laws. Krasnodar, 2014. 2014

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