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§ 1. Objective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine

Object of a crime

The object of a crime is that, on what the encroachment to that prichiyonjaetsja or can be damnified as a result of fulfilment преступления1 is directed.

The object as an element of the corpus delicti demands to itself raised vnimayonija as it, as a rule, is inaccessible to direct perception, and its definition demands special knowledge, and it is established by the detailed analysis of all circumstances of business.

One of the main aspects of the domestic concept of object of a crime existing nowadays is the question on its concept. Throughout several deyosjatilety almost in all works devoted to this question, unanimously provoyoditsja thought according to which object of a crime should admit opre - delennye public relations, and only they. However along with this concept in a criminal law science other points of view express also.

In the end of XIX century the standard theory obekyota which basic sense consists in understanding of a crime as infringements of the rule of law and the existing law and order enough was widespread. The criminal law admitted the simplified variant object of a crime according to the specified concept.

A number of scientists believes, that object of a crime are the major sotsiyoalnye values, interests, the blessings protected by criminal law from criminal

посягательств1. Other authors suggest to include in concept of object of a crime besides public relations «people with their consciousness, sights and ideology... Tools and means of production...» 2.

A.I.smartly notices, that «in structure of the object it is accepted to allocate sobstyovenno public relations and communications, is more rare their legal cover (pravootnosheyonija) and the absolutely seldom substantiated or materialised part public svjayozej - a crime subject» 3.

Analyzing the various points of view on concept of object of a crime, the author of dissertational research comes to conclusion, that object of a crime are public relations on which the person who is committing a crime and to whom it is caused encroaches or essential harm (damage) can be done.

The organisation or criminal society creation (the criminal organisation), participation in it, as well as any other crime, encroaches on certain object. Correct definition of object of the given crime allows to establish grayonitsy this crime, to delimit creation of the criminal organisation from other crimes, and also from offences of other sort which are not regulated by criminal law and are not covered.

With reference to the crimes provided by item 210 UK the Russian Federation «OrganiYOzatsija the criminal society (the criminal organisation)» (section IX, chapter 24), item 285 UK RB «Creation of the criminal organisation or participation in it» (section X, chapter 27) and item 255 UK of Ukraine «Creation of the criminal organisation» (section 9), act as patrimonial object the public relations providing the public safety.

The criminal law, establishing responsibility for these crimes, obespeyochivaet protection of those relations, which regulate bases (radical intereyosy) maintenance of safe conditions of existence of a society. These otnosheyonija also constitute essence of direct object of creation criminal soobyoshchestva (the criminal organisation).

Characterising object of the given crime, not -

1 See, for example: Tagantsev N.S.Russian criminal law. Lectures. A part the General. T. 1. - M, 1994. With. 32 - 35; Naumov A.V.criminal law. The general part. A course of lectures. - M, 1996. With. 147; a criminal law Course. The general part. Volume 1... With. 197.

2 See: Kudryavtsev V. N. To a question on a parity of object and a crime subject//the Soviet state and prayovo, 1985, № 8. With. 58-59; Demidov JU.A.social value and an estimation in criminal law. - M, 1975. With. 51.

3 See: Criminal law. The general part. The textbook / Under the editorship of V.N.Petrasheva. - M, 1999. With. 130.

obhodimo with special carefulness to find out, what it is concrete relations, the values constituting the public safety, are broken, what harm is caused them.

For the first time the concept "public safety" has been used in UgolovYOnom the code of RSFSR 1922 in the name of chapter 8 of the Special part «Infringement prayovil, protecting national health, the public safety and public porjayodok». Concept of the public safety, unfortunately, legislatively not zakrepyoleno.

Item 1 of the Law of the Russian Federation «About safety» from March, 5th, 1992 soyoderzhit definition, according to which: «Safety is a condition zashchishchennoyosti the vital interests of the person, a society and the state from internal and external threats». Thus the vital interests are defined as sovokupyonost the requirements which satisfaction reliably provides existence and possibilities of progressive development of the person, a society and the state. To osnovyonym to objects of safety concern the person - its rights and freedom; a society — its material and cultural wealth; the state - its constitutional system, the sovereignty and territorial целостность1.

Making such definition, the legislator has underlined, that safety vystuyopaet as the certain social phenomenon with all inherent in it svojyostvami, the important social blessing, to preservation and which maintenance gosudaryostvo and a society undertake all-round measures.

Lingvisticheski safety is represented as «position at which danger does not threaten whom is to something» [88 [89].

In the literature numerous attempts to open concept of the public safety [90] became and become. However, as mark N.I.wind and M.N.Zatsepin, «... Despite numerous mentions of the term"public safety",

♦ especially at the characteristic of patrimonial object of crimes... Its maintenance does not reveal »1.

We divide V.S.Komissarova's believing point of view, that «obshchestvenyonaja safety represents certain set public otyonosheny, not only regulating safe conditions of a life of a society, but also podyoderzhivajushchih such level of security of a society which is dostatochyonym for its normal функционирования2.

The Belarus scientists consider, that creation of the criminal organisation or uchayostie in it encroaches on the public safety as represents consolidation of persons for joint criminal activity on a regular basis and gk - 3

"Realisation of the organised counteraction to measures of the social control.

Many scientists believe, that direct object of the organisation or criminal society creation (the criminal organisation) is public, and is equal also state security, for the organised crime predstavyoljaet itself real threat for the state as breaks and paraliyozuet its efforts on the organisation and functioning various структур4.

Other scientists believe, that along with the public safety nepoyosredstvennym object of these crimes are also the public relations providing personal security. As additional object public relations in sphere of the government, interests gosudarstvenyonoj services, services in local governments, state and muni - f », tsipalnyh establishments, and also services (work) in commercial and others организа­циях5 (ch act. Z item 210 UK the Russian Federation; ch. Z item 285 UK RB). We will notice, that specified dopolnitelyonyj the object is absent in item 255 UK of Ukraine.

As V.S.Komissarov absolutely fairly marks: «Characteristic line of the mechanism of fulfilment of crimes against the public safety is

1 See: Vetrov N.I., Zatsepin M. N. Safety of private business. - M, 1995. S.6-7.

2 See: a criminal law Course. The special part. Volume 4. / Under the editorship of G.N.Borzenkova and V.S.Komissarova. - M, 2002.

WITH. 174.

3 See: Daniljuk S.E., Shardakov A.A., Vorontsov V.M.Kommentary to the Criminal code of Byelorussia. - Mn., 2003. With. 750.

4 See: Criminal law. The special part. The textbook for high schools / Editor-in-chiefs: I.J.Kozachenko, Z.A.not znamova, G.P.Novoselov. - M, 1997. С.381; N.I.criminal law's Winds. The special part. The textbook for high schools. - M, 2000. With. 253; Criminal law. The special part. The textbook / Under the editorship of V.N.Petrasheva. - M, 1999. With. 313.

5 See: the Comment to the Criminal code of the Russian Federation. The expanded criminally-legal analysis. / under obshch. red. V.V. Mozjakova. - M, 2002. With. 488.

*

"That circumstance, that such social values of a society as a life, health, the rights and personal freedoms, the property, etc., are broken oposredovanno, by injury to the relations regulating safe conditions of a society...« Complex »the crime and harm here takes place is caused to interests not to the concrete person, and socially significant interests...» 1.

The analysis stated above allows to draw a conclusion, that public bezoyopasnost, along with safety of the person and state security, javljayoetsja specific constituting national safety.

With reference to item 210 UK the Russian Federation, item 285 UK RB and item 255 UK of Ukraine to nepoyosredstvennomu to object of the given crime in the generalised kind it is possible to carry not all objects of safety, and only some of them: the rights and freedom of the person, mayoterialnye and society cultural wealth, normal activity gosudarstyovennyh and public institutes. The constitutional system, the sovereignty and terriyotorialnaja integrity of the state, in our opinion, are neposredstvenyonymi objects of crimes against bases of the constitutional system and bezopasnoyosti the states.

Along with terrorism, androlepcy, gangsterism, the organisation neyozakonnyh the armed formations, the organisation or creation criminal soyoobshchestva (the criminal organisation) represents heaviest of all viyodov crimes against the public safety. The given crime can be made in many spheres of ability to live of a society, mentions it is binnye interests in sphere of maintenance of safety and its normal conditions suyoshchestvovanija and is interfaced to possibility of causing of essential harm znachiyotelnomu to a circle legal and physical persons. Therefore object of these prestupleyony it will be not simple the public safety, and its bases.

At a concrete definition of bases of the public safety those are safety of a life, health, the physical integrity, advantage and other rights and freedom of the person and the citizen. It is important to notice, that direct obyoektom, covered concept of bases of safety, safety of the specified blessings, instead of these blessings is (the life, health, the physical integrity 1 See: a criminal law Course. The special part. Volume 4. / Under the editorship of G.N.Borzenkova and V.S.Komissarova. - M, 2002. With. 175-176.

“, Etc.). Accordingly specified objects are not simply bases obshchestyovennoj safety, and the public relations providing these bases.

The regular analysis of the criminal legislation of Russia, Belarus and UkYOrainy, resulted above positions in the relation of objects of structures a crime provided by item 210 UK the Russian Federation, item 285 UK RB and item 255 UK of Ukraine, allows to draw the basic conclusion that objects of these crimes coincide and predyostavljajut themselves the public safety - set public otnosheyony, providing safe conditions of a life of a society and supporting tayokoj level of security of a society which is sufficient for it noryomalnogo functioning.

W -

The objective party of a crime

The objective party of a crime is that its element which is most directly found out at committing a crime. Describing this or that crime, ordinary characterise mainly its objective party.

«The objective party of a crime is an external certificate of socially dangerous encroachment on object protected by criminal law, i.e. the certificate strong-willed povedeyonija which is carried out in the objective world and is expressed in injury to the specified object or creation of threat of causing to it of harm» 1, - considers akade - mik V.N.Kudryavtsev.

Professor M.I.Kovalev considers, that it is necessary to discriminate the objective party of a crime and the objective party of the corpus delicti. We believe, that it is necessary to agree with this opinion. The objective party of a crime includes all external signs and the circumstances characterising a concrete committed crime. All of them should be established and be estimated in the course of a consequence and a judicial legal investigation.

“However for definition of the bases of the criminal liability and kvalifikayo

tsii crimes matter only objective signs of a crime, ukayozannye in corresponding criminally-rule of law.

M.I.Kovalev makes following definition: «the Objective party of the corpus delicti is a set of legally significant signs, harakterizujuyoshchih a criminal action outer side» 1.

A number agrees with the specified position Russian and Belarus ученых2.

We believe, that the most successful and developed definition of the objective party is given by academician V.N.Kudryavtsev: the objective party of a crime is process of socially dangerous and illegal encroachment on ohranjae - - -

mye the law the interests, considered from its outer side, from the point of view poyosledovatelnogo developments of those events and the phenomena which begin with prestupnoyogo action (inactivity) of the subject and come to an end with approach criminal ре­зультата3.

The Russian legislator in the name of item 210 UK the Russian Federation mentions the term "orgayonizatsija" the criminal society though in a disposition of article it is not used. SoYOvremennyj Russian explanatory dictionary as follows interprets concept to "organise" - to create, base, found; to consolidate, rally ljuyodej for any цели4.

The objective party of the organisation of the criminal society (criminal orgayonizatsii), provided ch. 1 item 210 UK the Russian Federation, consists of three forms organised criminal activity:

1) criminal society creation (the criminal organisation) for soversheyonija heavy or especially grave crimes;

2) a management of such community (organisation) or structural divisions entering into it;

' See: Criminal law. The general part. The textbook for high schools / Otv. red. I.J.Kozachenko and Z.A.neznamova. - M, 1997.

WITH. 145.

2 See, for example: Criminal law of Russia. The textbook for high schools. T. 1. The general part / Ota. red. A.N.Ignatov, JU.A.Krasikov. - M, 1998. With. 114; Criminal law. The general part: the Textbook / Under the editorship of V.N.Petrasheva. - M, 1999. With.

130; Criminal law. The general part. The textbook / Under the editorship of V.M.Homicha. - Mn., 2002. With. 99; Woman's N.A.criminal law of Byelorussia. The general part: the Abstract of lectures. - Mn., 2000. With. 57; the Frost V.V., Bezljudov O. A. UgoYOlovnoe the right of Byelorussia. The general part: the Textbook.-Mn., 1997. With. 78.

3 See: Kudryavtsev V. N. The objective party of a crime. - M, 1960. With. 9.

4 See: the Modern explanatory dictionary of Russian / Gl. red. S.A. Smiths. - SPb., 2002. With. 459.

3) creation of association of organizers, heads or others predstaviyotelej the organised groups with a view of working out of plans and conditions for fulfilment heavy or especially grave crimes.

Each of these forms has the features and requires in separate rasyosmotrenii.

Criminal society creation (the criminal organisation), according to Century

Bykova, includes: selection of persons for participation in criminal activity soobyoshchestva (organisations); definition and redistribution of functions and roles in it; nayoznachenie heads of structural divisions, the persons who are carrying out the most important functions in community ("looking", «holders obshchaka», etc.); razra - F botka plans of criminal activity; definition and working out of principles rasyopredelenija incomes between members сообщества1.

A.N.Ignatov believes, that along with recruitment of members, definition prestupyonyh the purposes criminal society creation assumes formal fiksirovayonie memberships in the organisation by an oath in fidelity [91 [92]. V.S.Komissarov considers, that community creation is expressed in fulfilment of any actions, the criminal society organisation (the criminal organisation) [93] became result kotoyoryh.

Thus, criminal society creation (the criminal organisation)

It is possible to understand both as process, and as result of such process.

The comparative interpretation of concept "creation" which is given in postanovyolenii Plenum of the Supreme Court of the Russian Federation 1997 «About practice primeyonenija vessels of the legislation on responsibility for gangsterism» [94] with reference to a gang, allows to formulate it and in relation to the criminal society (the criminal organisation): «criminal society Creation (criminal organiyozatsii) is fulfilment of any actions criminal society formation (the criminal organisation) became which result, associations of organizers, ruyokovoditelej or other representatives of the organised groups with a view of fulfilment

And heavy or especially grave crimes or with a view of working out of plans and conditions for their fulfilment ».

Criminal society creation (the criminal organisation) from the objective party is expressed, first of all, in organizational activity.

Organizational actions on criminal society creation (preyostupnoj the organisations) will be: definition of the purposes of activity and principles of formation of community, working out of plans of activity, selection of accomplices and distribution between them duties, appointment of heads of structural divisions, financial security of activity of formation by the weapon, transport, financial and other necessary means, and also creation F of other necessary conditions for fulfilment heavy and especially grave crimes. When the community is created as a result of association earlier sushchestvoyovavshih is independent from each other organised groups with a view of fulfilment heavy and especially the grave crimes, corresponding actions on association of these oryoganizovannyh groups also should be considered as creation criminal soobshcheyostva (the criminal organisation) 1. Galimov I.G. and Sundurov F.R. Notice, that otliyochitelnoj line of the given form of the objective party is that circumstance, that community creation always precedes fulfilment by its members of others preyostupleny [95 [96].

Example of creation of the criminal organisation business, rassmotyorennoe as the Novosibirsk provincial court [97], on charge of a group of persons in fulfilment can serve. The crimes provided by item 210 and item 186 UK the Russian Federation. Actions guilty vyrayozilis in the following. The inhabitant of Krasnodar territory Karakchi-ogly, having appeared oblayodatelem 285 counterfeit stodollarovyh denominations of the USA for a total sum 28500 dollayorov, has decided to receive a profit, having been engaged in sale. For this purpose it needed to find accomplices. As a result of negotiations with relatives of the wife and other persons he has created the criminal organisation for fulfilment especially grave crime - sbyyota a counterfeit foreign currency in the large size, assuming it is

F ' vost, duration of existence (as it was a question that if counterfeit dollars will come true successfully, Karakchi-ogly guarantees fast receipt in a city of the following party of counterfeit dollars), presence of heads and sozdayonie smaller structural divisions. Organisation activity planiroyovalas.

Criminal society creation (the criminal organisation) is considered okonyochennym a crime from the moment of end of its formation.

The actions of the person directed on creation of the criminal society (prestupyonoj the organisations), in due time barred by law enforcement bodies or on others, not dependent from guilty to circumstances not led obrazova - niju the specified formations (for example, death or departure of the leader of community), in our opinion, should be qualified as attempt at the organisation preyostupnogo communities (the criminal organisation) referring to item 30 UK the Russian Federation.

I.A. Priests considers necessary to discriminate activity on the organisation preyostupnogo communities and on a direct management of its members. OrganizatoYOry similar community, as a rule, do not accept direct participation in fulfilment of crimes, but carefully prepare their realisation. Therefore the direct management of conspirators (organisation) at the moment of fulfilment of a concrete crime by one or several participants cannot be regarded in itself as organising activity [98].

The management of community (organisation) is expressed in fulfilment of actions by definition of tactics of activity of already created formation. Their number concern: working out flowing and long-term plans of activity of community, definition of objects of influence, redistribution in cases of necessity of duties between members of community or its structural divisions, a summer residence of orders on current material, financial and personnel questions of maintenance of activity of community, the control over fields of activity soobshchest -

T va, an establishment of contacts to the corrupted representatives of governing bodies, maintenance of necessary intragroup discipline and т.п.1

A. I.Larkov believes, that a management of structural divisions, vhoyodjashchimi in the criminal society (the criminal organisation), is carried out anayologichno, but in smaller scales. Its "policy" should not contradict the "policy" spent by higher heads [99 [100].

B. M.Bykov considers, that activity on a management criminal formiroyovanijami should be considered according to functions of the leader, the organizer. The leader of criminal group carries out organising, information, strategiyocheskuju, valuable and disciplinary functions [101].

Criminal soobyoshchestva it is possible to carry following actions to organising functions of the head, the organizer: a choice of object criminal vozdejstyovija; decision-making on time, a place, participants of a crime; preparation preyostupleny, cast, maintenance of material base (transport, communication, the weapon etc.); working out of ways of fulfilment and concealment preyostuplenija; consultation about possible objects of crimes, their ways soyovershenija and concealments, about crime instruments, about possible criminal dodges etc.; maintenance of safety of conspirators (criminal organiyozatsii); distribution of criminal incomes, instructions on deduction of money in the general cash desk, about support of members of the community which are serving time.

Information function of the head of the criminal society (the criminal organisation) can be carried out by following actions: gathering of data about vnutyorennej lives of the community (mood, plans, relations between members); an establishment and maintenance of communications in state both law-enforcement orgayonah and reception from them the necessary information (creation of "protection blocks», payoff of officials etc.).

Strategic function of the head includes usually performance of such actions: working out of plans of the criminal society; definition of directions is -
F usings of the criminal income, ways of washing up of "dirty" money, vozmozhnoyostej their investments in lawful business, in banks and funds; the preparation organisation noyovyh shots for the criminal society, introduction of the members in the state structures, in law enforcement bodies.

Is standard-valuable function of the head of the criminal society (preyostupnoj the organisations) can consist in definition of norms of behaviour of members soyoobshchestva, an establishment of interdictions, formation of unity of sights of members soobshcheyostva.

Disciplinary function is expressed in the resolution of conflicts between chleyonami communities; fixing a sentence by that who breaks the rules of behaviour accepted in it.

On criminal society creation (the criminal organisation) and a management of its activity it is possible to illustrate activity with a following example. By the Irkutsk provincial court are recognised by guilty of the organisation criminal soyoobshchestva, fulfilment in its structure of some crimes and the leader of community T and four its accomplices are condemned to long terms of imprisonment.

The court has established, that T in 1996 - 1998 has organised criminal soobyoshchestvo "Quarter" in the city of Angarsk of Irkutsk area for the purpose of fulfilment heavy and especially grave crimes. Has created on the basis of the general criminal interests usyotojchivoe, the rallied association, has meted between members criminal soobyoshchestva roles and has headed it. Realising the criminal purpose of the created community on reception of illegal incomes, T in advance has planned and has organised vymogatelyostvo money at tenants of trading places in city market "Fairy" in advantage preyostupnogo communities.

For maintenance of unobstructed achievement of this purpose on specified ryyonok one of conspirators R in quality rasproyostranitelja coupons about payment of a trading place which along with rent gathering simultaneously extorted money from tenants under the threat of their destruction toyovara has been employed. Then R has attached to this activity of minor G which has in turn involved in partnership in extortion of money at tenants of two more minors. Besides, T also has organised extortion of money at vla -

• ' deltsev cafe "Relish", has accepted in it personal participation. Along with it members prestupyonogo communities R and G, continuing criminal activity within the limits of the specified association, under the threat of a car arson extorted money at trading rabotyonika Ф1.

In our opinion, the crime made in this form, will be okonchenyonym from the moment of return of the first imperiously-administrative orders on the questions specified above.

Feature of association of organizers, heads or others predyostavitelej the organised groups is its creation for coordination dejstyovy various is isolated the operating organised groups in uniform naprav - and lenii, associations of human and material resources for them most effekyotivnogo uses and receptions of the maximum benefit, and also for development of measures of counteraction to law enforcement bodies or permissions disputable voyoprosov and section of spheres of influence [102 [103]. The association structure can include organizers, heads, other representatives of the organised groups, including rank-and-file members of groups (informal leaders, criminal authorities, etc.) . Association can be both constantly operating, and incidentally working as a meeting of thieves in the law. For impeachment for the given form organiyozatsii the criminal society (the criminal organisation) there is enough establishment of steady communications at least with one organizer, the head or other predyostavitelem other organised group or other organised groups with a view of working out of plans and conditions of fulfilment heavy or especially grave crimes.

V.M.Bykov believes, that creation of association of organizers, heads or other representatives of the organised groups with a view of working out of plans and usloyovy for fulfilment heavy or especially grave crimes can consist from sleyodujushchih actions of organizers: the conclusion of agreements on creation of association with organizers, heads of the organised groups; a communication establishment rukoyovoditelej the organised groups among themselves; definition of the head obediyonenija; achievement of agreements between heads of the organised groups about spheres of the influence, under control territories, about mutual aid rendering etc.;
fl carrying out of "dismantlings" for the resolution of disputes between heads and organizatoyorami various criminal groups; the organisation and carrying out thieves' shodok for the purpose of discussion of plans of combined action, definition of ways of money-laundering and the decision of others disputable вопросов1.

Function on association creation differs from creation criminal soobyoshchestva that the organizer of community obviously pursues the aim of formation multiplane hierarchical, but at the same time the complete structure subordinated to a uniform problem and an ox, and creating association carries out more likely function posredyonika between them, but in the course of association activity - co-ordinating and arbitration functions.

' 1* In our opinion, there is no necessity to prove all actions as on sozdayo

niju, and on a management of the criminal society (the criminal organisation), it is quite enough to prove fulfilment of one of the actions directed either on creation, or on a management of the criminal society (the criminal organisation). The crime will be the organizer ended from the moment of an establishment, rukoyovoditelem or other representative of the organised group of steady communications not less than with one organizer, the head or other representative another oryoganizovannoj groups (other organised groups) or from the moment of an establishment tayokih communications with the person who is not entering into any organised group.

If to estimate the given specific form of a crime from positions obshcheyogo doctrines about stages of criminal activity it is preparation to soyoversheniju concrete crimes. However, considering raised obshchestvenyona

nuju danger of the given forms of behaviour, the legislator gives them the status okonchennoyogo преступления2.

In ch. 2 items 210 UK the Russian Federation are provided responsibility for participation in preyostupnom community (the criminal organisation) or association organizatoyorov, heads or other representatives of the organised groups.

1 See: V.Obektivnaja's Bulls the party of the organisation of the criminal society//Legality. 2002, № 10.

2 See: a criminal law Course. The special part. Volume 4... With. 265.

AND

The m And as believes A.I.stall, such participation can be as prestupyo

nym, and not criminal i.e. to contain or not to contain signs of others prestupyoleny, provided UK РФ1.

The given form is the most difficult for allocation of criteria, pozvoyoljajushchih objectively to estimate participation in community or association activity as criminal or not criminal.

In this connection participation in the criminal society (the criminal organisation) can be divided into following kinds conditionally:

1. Preparation and fulfilment of criminal actions. In this case committing a crime is carried out on the instructions of the organizer, the head of community or under the community decision in whole (for example, the decision of a thieves' meeting). Here it is necessary to agree with L.D.Gauhmana and S.V.Maksimova's position, believing, that such crime can be unessentially heavy or especially heavy. SoverYOshenie any crime it can be used by community for test and check of personal qualities, is professional-criminal abilities etc. [104 [105]

Within the limits of preparation of fulfilment of crimes are carried out: working out of plans, ways, receptions of fulfilment of crimes, acquisition of tools and means of fulfilment of crimes, bribery for creation of conditions for criminal activity and its cover, sale of the property got criminal by, legalisation of incomes of criminal activity etc.

2. Complicity in functioning of the criminal society by actions,

. Not containing structures of other crimes. Such complicity can

To be expressed in the diversified acts: to recruitment and preparation of participants preyostupnogo formations, purchase of habitation and other real estate (garages, masteryoskih), consumer services of the criminal organisation, an establishment of contacts to public agents industrial and trading organisations etc.

Following the letter of the law, basically it is possible to recognise fulfilment of each of the named actions as participation in criminal society activity.

Unfortunately, the criminal law does not contain certain criteria for razyogranichenija criminal and not criminal activity of the persons rendering those or other services to organised criminal formation and its members. The institute souchayostija in this case accurately does not delimit impeachments in such cases, therefore the decision of this question depends on will pravoyoprimenitelnyh bodies that is fraught with possibility of any approaches to usyotanovleniju destinies of concrete persons.

V.S.Komissarov considers, that responsibility for participation in criminal soobyoshchestve (the criminal organisation) can come under a condition, if actions viyonovnogo: reflect criminal character of community or association; the reasons -

*

But are connected with criminal plans and the purposes of activity of community; vpisyvayojutsja in a channel of the general orientation of functioning of community or obedineyonija. It is necessary to recognise as the participant of the named formations such person who, understanding the accessory to the criminal society or association, agrees to participation in it and carries out any on character, but it is necessarily caused the actions caused by membership which are reflecting character of activity of this community and being a component of functioning of community or объединения1.

The criminal case considered in May, 2003 by the Supreme Court of Kabardino-Balkariya which has sentenced to 8 years and imprisonments the inhabitant of Nalchik Love SHanibeevu which has organised preyostupnuju group, engaged in export from the country of juvenile children for usynovleyonija to Israel can be a bringing to criminal liability example for participation in the criminal society (the criminal organisation). During proceeding it has been established, that in February, 1997 to SHanibeevoj, earlier three times sudimoj for illegal carrying out of abortions, the citizen of Israel Novel Amram with the offer has addressed to organise export neyodavno born children for adoption to Israel or to organise for the same purposes departure of substitute mothers. For each taken out child to it was obeyoshchano $2 thousand, and for delivery of substitute mother - $1 thousand

During the investigation, spent by Office of Public Prosecutor KBR together with UFSB, it has been established, that from April, 1997 till September, 1999 to Israel it has been taken out at least seven children from Kabardino-Balkariya. SHanibeeva found the women who have appeared in difficult position and for money ready to refuse children, then made fictitious papers for their export abroad. At first children took out through Tashkent where they were met by R.Amram, and then by means of special couriers — men and the women entering for this purpose in simulated marriage, sent through MoYOskvu to Israel. On a dock together with SHanibeevoj have appeared 8 more zhiteyolej Kabardino-Balkariyas. To all of them it has been accused on various chasyotjam article 152 UK the Russian Federation assuming responsibility for trade nesovershenyonoletnimi. Besides, SHanibeeva it has been recognised by guilty on ч.2 item 210 (organiyozatsija the criminal society), item 327 (a fake, manufacturing or sale poddelyonyh documents), ч.1 the item 123 (illegal manufacture of abortions) UK the Russian Federation.

On set of perfect crimes and taking into account the expiry of the term davyonosti on some episodes Supreme Court KBR has sentenced L.Shanibeevu to 8 goyodam imprisonments in a colony of the general mode, three its accomplices are sentenced to various terms of imprisonment from 3 till 4 years, five are amnestied. Still neyoskolko the person, passing on the given case, are declared in federal search [106].

L.D.Gauhman and S.V.Maxim believe, that the introduction of the person into the criminal society (the criminal organisation), created or created for fulfilment heavy or especially grave crimes, consists in consent to be the participant of the given community and assumption of obligations and functional objazannoyostej, assigned by the organizer or the head of community or community as a whole, including their performance connected, in particular, with podyskaniem of victims preyostupleny; working out of ways and receptions of fulfilment of concrete criminal actions; an establishment of contacts to officials state (including law-enforcement) the bodies, having possibilities to promote with isyopolzovaniem the official position of activity of community, to fulfilment
It and its separate participants of crimes, to evasion of organizers, rukovoyoditelej and participants of community from criminal ответственности1.

Professor A.N.Ignatov considers, that the persons who have rendered single assistance preyostupnoj of the organisation, but not entering into its structure, for example, given kreyodit, sold the weapon, transferred the valuable information on activity pravoohyoranitelnyh the bodies, promoting "washing up" of money criminal soobshcheyostva, etc., should bear responsibility for partnership in criminal society activity, and also for the actions forming independent structure prestupleyonija [107 [108].

Participation in association of organizers, heads or others predstaviteyolej the organised groups consists in the introduction of the person into such association created for fulfilment heavy or especially of grave crimes, and acceptance by it both on itself personally, and on all organised group represented to it and its members of the same obligations and functional duties who are accepted by the person entering the criminal society, and also working out together with druyogimi participants of association of plans and conditions for fulfilment heavy or especially grave crimes [109].

In our opinion, such participation can be expressed also at presence at sessions (shodkah) representatives of the different criminal organisations, in performance of commissions of the given association.

On ch. 2 items 210 UK the Russian Federation representatives of the organised groups who are authorised representatives of organizers and heads otyodelnyh criminal societies bear responsibility.

We believe, that participation in the criminal society (the criminal organisation) can be considered as completed crime from the moment of consent of the person about vstupyolenii in the given community (written or oral will), assumptions of obligations and functional duties (in written or oral foryome).

V.S.Komissarov considers, that for conspirators (preyostupnoj the organisations) the crime will be ended from the moment of performance of any actions following from the fact of an accessory to последнему1.

In practice often there is a question: whether comes under to bringing to criminal liability on ch. 2 items 210 UK the Russian Federation the organizer who was directly taking part in made members of the criminal society created by it concrete crimes?

It is necessary to note absence of the uniform approach in a qualification question dannoyogo a kind of acts.

So, for example, A.N.Ignatov believes, that as criminal activity of organizers and heads of criminal societies (organisations) falls under signs ch. 1 item 210 UK the Russian Federation, their participation in association of organizers and rukovoditeyolej the organised groups demands additional qualification on ch. 2 items 210 UK the Russian Federation on set. Such qualification is legally exact, reflects character of criminal activity of the specified persons and will promote appointment sprayovedlivogo punishments taking into account all aspects of activity guilty [110 [111].

The author divides I.A.popova's point of view which considers, that on a number of affairs about gangsterism the Supreme Court of the Russian Federation has made exhaustive explanations concerning qualification of acts of organizers in cases of creation by them gangs and participations in it, and these explanations are expedient for considering and on affairs about organizayotsii the criminal society (the criminal organisation) [112].

So, the Presidium of the Supreme Court of the Russian Federation on March, 18th, 1998, having considered as judicial supervision criminal case on charge Rustamova, has explained, that subekyotami the criminal liability for gangsterism its executors are both founders (rukovoditeyoli) gangs, and. Thus for founders and heads preduyosmotrena more strict punitive measure, therefore their actions come under kvalifikayo
tsii only on ch. 1 item 209 UK the Russian Federation and an additional legal estimation of the same actions on ч.2 item 209 UK the Russian Federation is not required [113].

Similar practice has developed and on affairs about the organisation criminal soyoobshchestva (the criminal organisation).

So, in 1997 in to Moscow of Figured velvets, obviously having informed were in federal search earlier sudimogo Trembacheva, etc. about the intention neodnoyokratno to make as a part of criminal group heavy and especially heavy prestupleyonija, has involved them in realisation of this activity. Has created rallied, organizoyovannuju group, having meted between its members of a duty. Under a management the Expert - kamitova this group long time repeatedly made in to Moscow and in Vladivostok the crimes connected with plunder of another's property fraudulently and breach of confidence in the large size, manufacturing and use of counterfeit diplomas and the seals; manufacturing and sale poddelyonyh securities in currency of the Russian Federation in the large size, etc.

With a view of conspiracy and concealment of activity of the criminal society under instructions Aksamitova, at its active participation Trembachev and others neodnokratyono made forged documents for their subsequent use chleyonami the criminal organisation. Under offer Aksamitova was also organizoyovano manufacturing and sale in the large size of counterfeit securities in Rossijyosky Federation. With that end in view in to Moscow they have got a package constituent doyokumentov offshore Company "is wine-vodka distillery" Capital »with the subsequent opening in one of banks of of Moscow of the settlement account, and also have made neyoskolko passports on various surnames, which at fulfilment of fictitious commercial transactions (depending on circumstances) for concealment of the data members of community successfully used. Under offer Aksamitova was orgayonizovano manufacturing and it is sold 15 counterfeit bills of Open Society" Bank Menatep "for the 1,9 million sum Roubles which have been assured by them made poddelnyyomi the seals of specified Open Society "Bank Menatep", Open Society "Company" Rosugol »and druyogih the organisations and the enterprises.

f ' In June, 1997 of Figured velvets, Trembachev, etc. in Vladivostok, having presented

Employees of Open Company "Company" fictitiously created in the regional centre Alabama »and having shown fictitious passports on other surnames, have concluded from HARD CURRENCY Open Society« Tonics - sotsbank »the contract on sale of 14 counterfeit bills of Open Society" Bank Menatep "on sumyomu 950 thousand roubles. This very day the specified sum has been listed on the settlement account of Open Company" Company "Alabama» in AKB "Dalrybbank", and therefrom with use of several commercial banks is forwarded to Moscow where this sum moshenniyokami has been cashed and appropriated.

In second half of 1997 the specified persons, having registered in Moscow under counterfeit passports fictitious Open Company «LTD. Company Mahaon», have concluded with pas­'s^7личными legal and physical persons dogovory about purchase and sale of fish and chicken okorochkov on a condition of the advance payment of their cost therefore the roguish have by appropriated 1,8 million roubles, not having satisfied a condition dogoyovorov.

The Moscow city court a sentence from July, 9th, 1999 has condemned Aksamitova M. V (as the organizer) on ч.1 item 210, ch. 3 items 159, ch. Z item 186 and to other articles UK the Russian Federation by 11 years of imprisonment, and Trembacheva V. A (as executor) - on ч.2 item 210, ch. 3 items 159, ch. 3 items 186 and to other articles UK the Russian Federation by 10 years of deprivation свободы1.

The corpus delicti provided ch. 3 items 210 UK the Russian Federation, have spetsificheyosky a sign concerning the objective party. It is fulfilment dejstyovy, caused by the official position guilty.

Participation in the criminal society (the criminal organisation) officials of the state or municipal bodies, including representatives vlayosti, heads and ranking officers of financial, industrial, commercial and other organisations represents the special social danger as is one of forms of merge of criminal mafia structures with legalyonym business, with the state bodies.

According to many authors, definition which is given to concept ispolzoyovanija the official position at gangsterism, anything essentially does not differ

From definition of such concept with reference to the criminal society (prestupyonoj the organisations) 1.

Under the committing a crime, provided by item 210 UK the Russian Federation, with ispolyozovaniem the official position (ch. 3) it is necessary to understand use: svoyoih imperious powers or other office powers; uniform and attributes; business cards or the weapon; data, with which person rasyopolagaet in connection with the official position, at creation criminal soobyoshchestva (the criminal organisation), a management of it or entering into it strukturyonymi divisions, creation of association of organizers, heads or other representatives of the organised groups, at involving in them new uchastni - kov.

It is necessary to carry to use of the official position also primeyonenie the above-stated data and other possibilities following from sluzhebyonogo of position of the person, by preparation or fulfilment by the criminal society (the criminal organisation) concrete heavy or especially grave crimes, at financing of its criminal activity (planning and fulfilment heavy or especially grave crimes), arms, material equipment, selection of new conspirators (the criminal organisation), etc.

Some authors consider, that on ch. 3 items 210 UK the Russian Federation to criminal otvetstvenyonosti can be involved only officials or public agents, isyopolzujushchie in criminal purposes the official position [114 [115].

In our opinion as the legislator and the Supreme Court Russian FeYOderatsii use the term "official position", instead of «official polozheyonie» it should be interpreted broadly in relation to any subjects, including nedolzhnostnyh the state and municipal organisations, persons carrying out administrative functions in commercial or other organisation. Besides, here it is possible to carry and non-management employees commercial or others oryoganizatsy. From the point of view of the law not so much status, how many the practical is important
G possibilities in assistance of criminal activity of the criminal society (preyostupnoj the organisations).

Forms of such assistance can be various: financing dejatelyonosti communities, granting of the information on objects and persons, measures, predyoprinimaemyh law enforcement bodies on suppression criminal dejatelyonosti communities, including operative information, communication realisation between accomplices, supply by the weapon, an ammunition, transport sredstyovami and other means, fulfilment of actions on secure and cover as community activity as a whole, and its members at fulfilment of separate crimes by them etc.

From the objective party the crime provided by item 285 UK RB, moyozhet to be expressed in following alternative forms: 1) activity on creation of the criminal organisation; 2) a management of the criminal organisation; 3) a management of structural divisions entering into the criminal organisation; 4) participation in the criminal organisation in any other form.

Activity on creation of the criminal organisation is difficult komyopleks various actions on the character, directed on formation soobshchestyova the criminals, consolidating collective subjects of criminal activity (the organised groups, gangs, etc.) or the separate persons connected with such дея­тельностью1.

Actions of the organizer on creation of the criminal organisation can vyrazhatyosja: in working out of its program (construction principles), plans and directions of its activity; association of independently operating organised groups, them liyoderov; creation of new structural divisions; definition for them influence spheres; selection and recruitment of other participants; their instructing; distribution between them roles and functional duties; a control establishment over teyonevoj economy, a gaming, prostitution and other spheres of illegal services; creation of monetary and other funds for maintenance of criminals and finanyosirovanija community activity; creation lzhestruktur for cover prestup - 1 See: Daniljuk S.E., Shardakov A.A., Vorontsov V.M.Kommentary to the Criminal code of Byelorussia. - Mn., 2003. With. 750.

"W ache activity; material equipment; supply by the weapon; sozyodanii systems of counteraction to law enforcement bodies, including by an establishment of communications with the corrupted officials, etc.

A.V.Barkov considers, that activity on creation of the criminal organisation is expressed in two forms:

1. Any organising activity on formation and consolidation oryoganizovannyh criminal groups or on association already existing organiyozovannyh groups for joint criminal activity (working out of plans obeyodinenija and interactions, recruitment of conspirators, organizayotsija official cover for the future criminal organisation, formation

1W financial assets, etc.).

2. Organising activity on association of representatives organizoyovannyh groups (organizers, heads, other participants) for working out and realisation of measures on realisation of criminal activity or creation of conditions for its maintenance (a communication establishment, negotiating, definition of forms and cooperation methods, planning and the organisation of carrying out of concourses prestupyonikov, etc.). And the second version of organising activity can be combined with первой1.

Activity on creation of the criminal organisation can «be expressed in razyorabotke structures of the organisation and principles of interaction of its members, acceptance of measures on association of independently operating criminal groups or they be drivers, distribution of spheres of criminal activity in scales sootvetstyovujushchego region or economy branch, a control establishment over subjects of shadow economy and sphere of illegal services, creation of fund material reyosursov for maintenance of financial activity of community, and also system proyotivodejstvija to law enforcement bodies» [116 [117].

Overall objective of creation of the criminal organisation - association of efforts razrozyonenno the operating organised groups, and also coordination of their activity in

t scales of region, branch of economy, sphere of criminal activity for naiboyolee an effective utilisation of available forces and means and reception maksimalyonyh incomes of joint criminal activity.

In our opinion, activity on creation of the criminal organisation can be carried out both one, and several persons.

Unlike UK the Russian Federation, activity on creation of the criminal organisation mozhyono to understand as certain process instead of as result, therefore the crime of this form is considered ended from the moment of fulfilment of any actions, napravyolennyh on association of the specified groups and persons in a criminal alliance on purpose sozdayonija optimum conditions for scale illegal it is active - N sti. About it it is spoken in item 10 of the Decision of Plenum of the Supreme Court of Byelorussia from September, 25th, 2003: «... Activity on creation criminal organizayotsii (ч.1 item 285 UK) admits completed crime from the moment of fulfilment of any actions directed on formation of the criminal society, sostojayoshchego from the several organised groups (gangs) or the separate persons connected with them» [118].

The corpus delicti provided by item 285 UK RB, is truncated and does not demand approach of socially dangerous consequences.

The management of the criminal organisation (individual or joint) assumes activity on management of already created community. «Management includes a complex of the organising functions directed on maintenance of ability to live of created formation. It can be expressed: in development of the general strategy and tactics of activity of the criminal organisation; to working out and reayolizatsii measures on realisation of illegal activity; creation of conditions for steady functioning of community and achievement of its criminal purposes; maintenance and development of criminal traditions; the organisations of carrying out of concourses of criminals; the control over gathering and distribution of criminal incomes; search and recruitment of new members; supply of the criminal organisation by the weapon both other tools and means of fulfilment of crimes; gathering and the information analysis (in

On

sf. That number and data on activity of law enforcement bodies); coordination of actions of structural divisions; the permission arisen between them konyofliktnyh situations; the coordination of criminal plans and actions with others krimiyonalnymi formations; the control over washing up of criminal incomes and proyoniknoveniem in legal business; payoff of public agents; adjustment svjayozej with the international organised crime etc.

The crime of the considered form is considered ended since the moment soyovershenija any actions on a management of the created criminal organisation.

We believe, that functions of the organizer and the head of the criminal organisation can be combined in one person.

N the Management of structural divisions of the criminal organisation -

It is activity on management of associations of persons entering into its structure (organiyozovannymi groups, gangs, groupings, groups of co-authors) in sootyovetstvii with plans of the criminal organisation and concrete duties, vozloyozhennymi on the given structural division. It can be expressed: in raspredeyolenii roles and functions between participants of divisions; planning prestupyonyh actions and a management of their execution; the coordination of activity with other structures of the criminal organisation; maintenance of measures of conspiracy; discipline maintenance in headed divisions; participation in structure of leaders prestupyonoj the organisations in joint working out and realisation of measures on coordination, podyoderzhaniju and to development of criminal activity; finishing of tasks and commissions ru - kovodstva the criminal organisation to concrete executors, etc.

The crime of the given form is considered ended from the moment of fulfilment of any actions on a management of the structural divisions entering in soyostav the criminal organisation.

According to A.V.Barkova, the management of the criminal organisation can be function of the formal leader, for example, the criminal association selected participants, and can be carried out and the informal leader, which uzurpiro -

Shaft imperious powers. Legal effect has character carried out funkyotsy, instead of how the person has received the power in association преступников1.

Regarding 2 articles 285 UK RB responsibility for participation in preyostupnoj the organisations in any other form is established. Unlike UK the Russian Federation Criminal code RB opens an objective aspect of activity of the participant criminal organizayotsii.

Participation in the criminal organisation (except for creation and a management) assumes: 1) fulfilment by its member of any practical actions in sootvetstyovii with criminal purposes of the given organisation or 2) rendering by the person, not javljajuyoshchimsja a member of this organisation, assistance in working out or realisation of measures on realisation of criminal activity or creation of conditions for it podderzhayonija and developments. It can be both direct fulfilment of crimes, and other actions providing functioning of the criminal organisation: fiyonansirovanie; supply by the weapon; maintenance with transport; manufacturing podyolozhnyh documents; gathering of data on the future victims; podyskanie objects for encroachments; concealment of tools and crime traces; sale of the property extracted criminal by; an establishment of contacts to the corrupted employees goyosudarstvennogo the device; participation in shodkah; performance of security functions; okazayonie consulting services, etc.

A.V.Barkov believes, that participation in the criminal organisation are the any other forms of behaviour which are not covered by signs of organising and supervising activity. Any acts of ordinary participants criminal soyoobshchestva, carried out on the instructions of a management of the criminal organisation or under own initiative, but in interests of the criminal organisation Mean; neposredstyovennoe execution of crimes; creation of conditions for their fulfilment (gathering and peyoredacha information, acquisition, storage, granting of tools and means soyovershenija crimes, etc.); sales promotion of the property extracted criminal by; concealment of traces of a crime; « Washing up »criminal incomes; obespecheyonie communications between members of the criminal organisation, with its divisions, with other criminal organisations; participation in shodkah,"congresses"and other concourses pre - 1 See: Barkov A.Ugolovno-pravovaja an estimation of creation of the criminal organisation and participation in it (item 742 UK BelaruYOsi).//Sudovy vesshk, 1998, № 2.


f stupnikov as representatives of the organised groups or criminal organiyo

zatsy and other kinds поведения1.

Plenum of the Supreme Court of Byelorussia has underlined: «Participation in dejayotelnosti the criminal organisation means occurrence in its structure and performance of any actions in its interests...

On osushchestvleyoniju criminal activity it is necessary to understand as rendering of assistance in working out or realisation of measures, in particular, actions on planiroyovaniju criminal acts, to search of objects of encroachments, granting informayotsii, consultation, the help in concealment of traces of a crime, legalisation preyostupnyh incomes.

Creation of conditions for maintenance and development of criminal activity moyozhet to be expressed, for example, in supply by tools and fulfilment means preyostupleny, financing of criminal activity »[119 [120].

It is represented, that the participant of the criminal organisation follows also priyoznat the person who was not a part of the organisation, but has made socially dangerous act under its task.

Authors of the comment to Criminal code RB consider, that the person having communications with the criminal organisation, but not rendering to it of assistance in its criminal activity (for example, the organisation of treatment, rest, entertainment for its members, etc.), cannot be recognised by the participant of the criminal organisation, however at nayolichii corresponding conditions can bear responsibility for prikosnovennost. To a crime (the item of item 405 or 406 UK RB). They believe also, that the person who has refused the offer to enter structure of the criminal organisation, can bear responsibility for failure to report about existence of the criminal organisation under article 406 UK RB [121].

The person who has agreed to the introduction into the criminal organisation, but not soyovershivshee any practical actions in its interests, can be involved
To responsibility for preparation for participation in this organisation (item 13 and ch. 2 items 285УКРБ) 1.

A.V.Barkov believing, that adheres to other point of view, giving soyoglasie on the introduction into the criminal organisation, the person yet does not make obshchestyovenno dangerous act, and only expresses readiness to make it in the future. The summer residence of such consent does not differ from consent on fulfilment of any another preyostuplenija and represents only intention detection on fulfilment prestupyolenija, that is not the basis for the criminal liability [122 [123].

It is possible to consider participation in the criminal organisation as completed crime since the moment: 1) introductions litsa'v this organisation as a member and performance * ' any on character of the functions following from the fact of an accessory to data soyoobshchestvu or 2) of rendering by the person, its not being member, the help in working out or realisation of measures on realisation of criminal activity or creation usyolovy for its maintenance and development, or 3) fulfilment by the person who is not the participant of the criminal organisation, a crime under its task.

The part of 3 articles 285 UK RB provides raised criminal otvetstyovennost for the acts provided by parts of 1 or 2 given articles, made by the official with use of the office powers.

Guilty persons can be in the service in the state bodies (napriyomer, employees of state governing bodies, pravoohranitelyonyh, judicial and supervising bodies, military men, etc.) or negosudar - stvennyh the organisations (for example, workers of private security structures, security services of banks, etc.).

Powers as a component of the competence and the status of the official are the rights and a duty by which this person is allocated owing to a post.

Character of office activity of value has no. The main basis otyovetstvennosti as regards 3 articles 285 - use by the person of the rights, vozmozhnoyostej and the powers given to it on service, in interests criminal soobyoshchestva. It can be expressed: in supply of accomplices by uniform and at -
W'рибутикой, business cards, the weapon; to delivery of licences; finansiroyovanii criminal activity; material equipment; consultation by preparation or fulfilment of concrete encroachments; cover souchastniyokov crimes; granting of the information by it which the person has blayogodarja to the official position, etc. Given crime can soveryoshatsja by not only actions, but also inactivity (for example, defaults soyotrudnikom customs service of the official duties on examination of the cargoes moved through customs border by participants of the criminal organisation).

Actions of the specified officials completely are covered ch. Z items 285 UK RB also do not demand qualification on norms about crimes against interests of service.

It is represented, that if the participant of criminal association, holding of any post, does not use the office powers in interests of the criminal organisation, responsibility on ch. Z item 285 UK RB is excluded.

The analysis of the objective party of the corpus delicti provided by item 285 UK RB, allows to draw a conclusion, that its obligatory signs are akyotivnye the actions expressed in activity on creation criminal organizayotsii (ch. 1 items 285 UK RB), act or omission at participation in it (ch. 2 items 285 UK RB). Studying of the criminal cases initiated under item 285 UK RB, has shown, that in absoyoljutnom the majority of cases (97,1 %) the objective party of acts was expressed in the form of active actions [124].

The great value has a way of creation of the criminal organisation on UK RB (in *

1 difference from criminal society creation (the criminal organisation) on UK the Russian Federation): act does not form the given corpus delicti, if attraction to participation in the criminal organisation (ch. 2 items 285 UK RB) are carried out on compulsion - under threat of violence to it or its relatives, destructions or damages of their property, distribution slanderous or announcements of other data, koyotorye they wish to keep as fiduciary, with violence or destruction application or property damages. The specified acts form independent structure preyo

otuplenija «Compulsion of the person to participation in criminal activity» (item 288 UK RB).

The moment of the termination of the crimes provided ch is besides, various also. 1 items 210 UK the Russian Federation and ch. 1 items 285 UK RB. The Russian legislator considers it prestupyolenie ended at the moment of criminal society creation (criminal organiyozatsii) while on UK RB completed crime is itself dejatelyonost on creation of the criminal organisation, that, in our opinion, expands vozmozhyonosti applications of given article.

Further we will consider the signs characterising the objective party prestupyolenija, provided by item 255 UK of Ukraine.

From the objective party the given crime (ch. 1 item 255 UK of Ukraine) moyozhet to be expressed in following forms: 1) creation of the criminal organisation; 2) rukoyovodstvo the criminal organisation; 3) participation in the criminal organisation; 4) participation in the crimes made by such organisation; 5) the organisation, a management or assistance to a meeting (meeting) of representatives of the criminal organisations or organizoyovannyh groups for working out of plans and conditions of joint fulfilment prestupleyony, financial security of criminal activity or coordination dejstyovy the criminal organisations or the organised groups — it is possible to name is short such actions consolidation of the organised criminal activity.

In item 255 UK of Ukraine the kind of the criminal organisation is not concretised: it can be any criminal organisation which purpose is soversheyonie at least one heavy or especially grave crime or activity koyotoroj is connected with fulfilment of several crimes. Any others dopolniyotelnyh signs of such organisation (the armament, the special purpose of creation and activity etc.) in the law is not provided.

It is necessary to understand actions as creation of the criminal organisation, napravyolennye on occurrence of the criminal organisation. These actions can be expressed in the following: selection of participants; cast; priiskanie material means: money, transport, premises etc.; working out of plans; priiskanie obekyotov attacks etc.

The person who has created the criminal organisation, in the future can and not to be its head or the participant.

The management of the criminal organisation assumes performance of organizayotsionno-administrative functions concerning the organisation in whole or its structural divisions. Such functions can consist in selection of members orgayonizatsii, working out of plans of criminal activity, statement of tasks, naznacheyonii executors, reception of reports on performance of tasks etc.

Participation in the criminal organisation provides stay in structure of the criminal organisation.

Participation in the criminal organisation means: the introduction into the organisation, at - njatie duties of a member of the organisation, participation in working out of plans and participation in their realisation, observance of the rules of behaviour established by the organisation etc.

The person becomes the participant of the criminal organisation from the moment of its creation (if it enters into a circle of persons from which initially there is an organisation) or when other participants have agreed to its acceptance in already existing organiyozatsiju. We believe, that in a case when heads of the criminal organisation otkazayoli the person, wishing to become the participant of this criminal formation, actions of the last are necessary for qualifying as attempt at participation in the criminal organisation.

Participation in the criminal organisation means performance in interests such oryoganizatsii various actions, realisation of a part of functions of the organisation. The participant carries out actions in interests of the organisation together with others it is nikami or is independent, all counts on its potential assistance oryoganizatsija and its separate members. It can act as the executor of separate crimes, to plan them, to carry out auxiliary actions, to carry out personal errands of heads of the organisation.

Criminal case materials, vozbuyozhdennogo on ch can be an example of such activity. 1 items 255 UK of Ukraine concerning a group of persons Office of Public Prosecutor Riv - nenskoj areas. Accusations are brought to five members of the criminal organisation, four more are searched.

According to the press-service of the State Office of Public Prosecutor of Ukraine, by a consequence it is established, that the organised criminal group into which structure entered zhiyoteli Rivnensky and Lvov areas, throughout 2001-2003 osushchestvljayola armed assaults in territory of Rivnensky area and illegally took hold

Property of citizens, made other grave crimes.

Participants of grouping operated under accurately adjusted plan. One group transported on territory of Ukraine money for inhabitants of area from them rodstyovennikov which are on earnings abroad. Other group in advance knowing about transferred means, made armed assaults already in Rivnensky area. Criminals carefully prepared for each touch: podyskiyovali corresponding motor transport, masks and gloves, dogovarivayolis about meetings only by mobile phones, constantly changing their numbers used. Criminals operated in the conditions of severe discipline and were ready vypolyonit any task of the head of the criminal organisation, including and murder of the inhabitant of the Nikolaev area which in 1995 by request of the organizer was made by participants of grouping in territory of Rivnensky area. On business priyoznano 7 victims to whom by criminal group actions it is put losses on the sum more than 8 thousand doll, and 11 thousand гривен1.

In March, 2004 criminal case is initiated in Sevastopol to signs of item 255 UK of Ukraine concerning eight local residents who have created obshchestyovennuju the organisation which operated by principles of a financial pyramid.

According to press-service GUBOP, malefactors by moshennichestyova, breach of confidence and psychological influence have illegally taken hold deyonezhnymi of means of citizens for a 202 thousand total sum griven, are established 100 suffered from illegal activity мошенников2.

Let's notice, that participation in the criminal organisation does not cover fulfilment of actions which represent independent crimes. They kvaliyofitsirujutsja corresponding articles of Special part UK of Ukraine.

Consolidation of the organised criminal activity represents soyoboj association of activity of the separate criminal organisations and is organised -

1 See: http://mignews.com.ua

2 See: http://bel.com.ua/news/18547

nyh groups for strengthening of their activity also consists in various actions, nayopravlennyh on carrying out of meetings of representatives of such associations. For example, the offer on carrying out of such meetings and the invitation to them of participants; opredeyolenie time and a place of their carrying out; definition of a circle of questions, which podleyozhat to discussion and the coordination; realisation of administrative powers during meetings: an establishment of turn of performances, appointment of an order of the decision voyoprosov, preparation of projects of decisions, settling of disputes; granting pomeshcheyony, transport, a communication facility, protection of meetings etc.

The crime has formal structure and it is considered ended from the moment of fulfilment of one of the acts provided by a disposition ч.1 item 255 UK UkraiYOny.

Let's notice, that unlike Criminal codes of the Russian Federation and BeYOlarusi the criminal law of Ukraine (item 255) does not provide a qualifying sign - fulfilment of the given crime with use office poloyozhenija, that hardly it is possible to consider as the successful decision.

For example, according to press-service GUBOP of the Ministry of Internal Affairs of Ukraine, workers UBOP of the Poltava area expose the criminal organisation into which ten officials entered, including directors of several industrial predyoprijaty and operating the Poltava branches of two commercial banks. In teyochenie 2001 - 2003 under forged documents they have illegally received 23 krediyota in the specified banks for a 3 million total sum griven and by this time have not returned them. The area Office of Public Prosecutor initiates criminal case to signs ch. 1 items 255 UK of Ukraine [125].

It is obvious, that the specified persons could make the given crimes, only using the official position.

The analysis of the objective party of structures of the crimes provided by item 210 UK the Russian Federation, 285 UK RB and 255 UK Ukraine allows to draw a conclusion, that the signs characterising this element of a crime, under criminal codes of Russia, BelaYOrusi and Ukraine as a whole coincide. However there are also differences. So legislator BelaYorusi has transferred the moment of the termination of the crime provided by item 285 UK RB on

Earlier stage. It is considered ended from the moment of fulfilment of the actions directed on creation of the criminal organisation, irrespective of result of this activity. Criminal legislations of Russia and Ukraine connect the moment of the termination of the crimes provided by item 210 UK the Russian Federation and item 255 UK RU, with momenyotom creations of the criminal society or the criminal organisation. Besides, otyolichitelnoj feature of item 255 UK of Ukraine is absence kvalifitsiyorujushchego a sign - fulfilment of the acts directed on the organisation, rukovoyodstvo or participation in the criminal organisation, with use office polozheyonija.

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A source: Chernij Andrey Viktorovich. Criminal liability for the criminal society organisation (the criminal organisation) under the legislation of Russia, Belarus and Ukraine: the comparative analysis. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan - 2005. 2005

More on topic § 1. Objective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine:

  1. § 2. Subjective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine
  2. CHAPTER 2. The criminally-legal characteristic of structures of the crimes providing responsibility for creation prestupyonogo of community (the criminal organisation) on UK Russia, Belarus and Ukraine
  3. § 1. The retrospective analysis of institute of the criminal liability for oryoganizatsiju the criminal society (the criminal organisation) on zakonodatelyostvu Russia, Belarus and Ukraine
  4. Black Andrey Viktorovich. the Criminal liability for the criminal society organisation (the criminal organisation) under the legislation of Russia, Belarus and Ukraine: the comparative analysis. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan - 2005, 2005
  5. CHAPTER 3. Features of the criminal liability for the organised criminal activity and unification of criminal legislations of Russia, Belarus and Ukraine in sphere of counteraction to criminal societies (the criminal organisations)
  6. § 2. Unification of criminal legislations of Russia, Belarus and UkraiYOny in sphere of counteraction to criminal societies (criminal organizayotsijam)
  7. § 1. Features of the criminal liability for organised prestupyonuju activity under the legislation of Belarus and Ukraine
  8. CHAPTER 1. The legal nature of institute of the criminal liability for the criminal society organisation (the criminal organisation)
  9. § 3. Responsibility for the crimes interfaced with rejderskimi by captures, in the criminal legislation of the Russian Federation: concept, system and qualification of criminal trespasses
  10. § 2. Implementatsijathe international legal norms providing responsibility for illegal circulation prekursorov of narcotics and psychotropic substances, in the criminal legislation of Russia and Tajikistan
  11. CHAPTER 1. HISTORY of DEVELOPMENT of the CRIMINAL LEGISLATION of Russia And the MODERN FOREIGN CRIMINAL LEGISLATION ON RESPONSIBILITY FOR DELIBERATE DESTRUCTION OR DAMAGE of ANOTHER'S PROPERTY
  12. 2.2. The criminal organisation and the criminal society
  13. § 2. Concepts of the criminal society and the criminal organisation, their place at partnership institute
  14. §1.1. Development of the domestic criminal legislation on responsibility for granting of the false data dangerous to the criminal trial
  15. § 2. Features of the modern criminal legislation of the foreign countries regulating clearing of the criminal liability on affairs about crimes in sphere of economic activities
  16. § 1. The retrospective analysis of the domestic criminal legislation providing responsibility for deliberate destruction or damage of another's property