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§ 2. Otgranichenie the corpus delicti provided by item 264 UK the Russian Federation from adjacent and other structures of crimes.

correct qualification sodejannogo under item 264 UK the Russian Federation in many respects depends on accuracy otgranichenija structure of the given crime from adjacent and other structures of crimes. Thus one of the major questions is definition of concept of a road and transport crime and its difference from other kinds of offences, 99 Made on motor transport. Ю5 Hence, strictly scientific approach checked up by practice to a choice of criteria which should admit differentiating signs at definition of this or that motor transportation offence is necessary. The problem of correct qualification of criminal action is closely connected with a problem otgranichenija the corpus delicti also, that in an end result has defining value for a responsibility establishment for sodejannoe. It sees especially actual in the light of existing in the majority of the countries of the tendency of rather limited application of the criminal liability for cases «postavlennja in danger» and wide recognition of such torts by administrative violations. Other approach would lead to unreasonably wide application of measures of criminal reprisal, that, certainly, would mismatch interests of the person, a society and the state. Ability correctly to qualify crimes, that is to carry out a choice criminally-rule of law precisely reflecting actual facts sodejannogo, allows: to delimit criminal from not criminal, to state a legal estimation sodejannogo, corresponding to the law; to define those actual facts in which elements essential to the offence are embodied and which it is necessary to prove in an order provided by the criminal procedure legislation; to guarantee observance Ljubimov L.V.problem of qualification of the motor transportation crimes connected with infringement of rules of traffic and operation of vehicles//Actual problems of crime control: the Collection of scientific articles. - an eagle: the Ministry of Internal Affairs of the Russian Federation, the Oryol Juristic institution, 1998. With. 12-16. 100 Legality in the conclusion of inspectors and definition of judges; to provide realisation of problems of criminal law and process in pravoprimenitelnoj activity. As writes N.I.Pikurov, it is conditionally possible to present qualification of road and transport crimes in the following виде:106 1) Definition of type of a vehicle and its conformity to the signs specified in item 264 UK the Russian Federation. 2) Establishment of a kind of infringement of safety rules: whether it is connected with traffic or vehicle operation. 3) Definition of concrete positions of Rules of traffic or operation of the vehicles broken by the driver. 4) Establishment of character and weight of the consequences provided by item 264 UK the Russian Federation. 5) Causal relationship revealing between infringement of rules and the come consequences. 6) Establishment of signs of the perpetrator. 7) Definition of the maintenance of the subjective party. 8) Legal fastening of qualification in the corresponding remedial document. In 1970 in the decision №11 from October, 6th 1970г. «About judiciary practice on affairs about motor transportation crimes» (from changes., vnesen.postanovlenijami Plenum №2 from October, 3rd 1976г., №3 from February, 25th 1977г. And №5 from January, 16th 1986г) Plenum of the Supreme Court of the USSR noticed, that the majority of affairs about criminal infringement of safety rules of movement and operation of vehicles by vessels Pikurov N.I.qualification of road and transport crimes.
- Volgograd, 2001. With. 4. 101 It is authorised according to law requirements. At the same time, as has shown judiciary practice studying, in activity of vessels on disposal of legal proceeding of the specified category lacks still take place, and are supposed ошибки.107 the Last quite often were and grow out not correct otgranichenija among themselves motor transportation and others преступлений.108 To delimit structure of item 264 UK the Russian Federation from adjacent and other structures of crimes, it is necessary to open and understand specificity of road and transport crimes first of all. The last are provided гл.27 UK the Russian Federation, including 8 articles. Among them: «infringement of safety rules of movement and operation railway, air or a sailing charter» (item 263); «Infringement of rules of traffic and operation of vehicles» (item 264); «Substandard repair of vehicles and their release in operation with technical malfunctions» (item 266); «Reduction in worthlessness of vehicles or means of communication» (item 267); «Infringement of the rules providing safe work of transport» (item 268); «Infringement of safety rules at building, operation or repair of the main pipelines» (item 269); «Refusal to aid by the ship master of the help suffering disaster» (item 270); « Infringement of rules of the international flights »(item 271). See: the Decision of Plenum of the Supreme Court of the USSR №11, 1970 / the Collection of operating decisions of Plenums of the Supreme Courts of the USSR and the Russian Federation on criminal cases). Otv. Red. V.I.Radchenko - M, 1999. With. 424. 108 Russian justice. - 2002. № 12. With. 59 - 61; Russian justitsija.-2004. № 1. With. 61-65. 102 According to A.I.Korobeeva, offered by the Russian legislator in UK the Russian Federation 1996г., «the system of norms about responsibility for crimes in transport, has appeared not free... From variety of serious lacks. First, it covers far not all crimes really encroaching on safety of functioning of transport. It is a question, first of all, of such crimes in transport as wrongful occupancy by the car or other vehicle without the plunder purpose (item 166 UK), stealing, and equally capture of an air either water vessel, or a railway rolling stock (item 211 UK), are carried to encroachments on other objects».109 Secondly, in general behind frameworks new UK it has appeared a crime provided by item 204 UK RSFSR («Refusal to aid at collision of vessels or non-disclosure of the name of a vessel») «Meanwhile, to criminalise given act legislator has been obliged owing to same reasons which have induced it to include in gl. 27 UK the Russian Federation of item 270 (refusal to aid by the ship master of the help suffering disaster), i.e. carrying out of obligations taken on itself Russia under the international conventions».110 Thirdly, in гл.27 UK the Russian Federations «were found out two short stories providing responsibility for encroachments not on safety of functioning of transport, and on other public relations: infringement of safety rules at building, operation or repair of the main pipelines (item 269 UK), infringement of rules of the international flights (item 271 UK).111 Korobeev A.I.crime. - Spb.: Publishing house «the Legal centre the Press», 2003. With. 59-60. 110 In the same place. 111 In the same place. 103 Patrimonial object of the crime provided by ITEM 269 UK the Russian Federation are relations in the field of economic and economic activities or, as a last resort, the public safety, but not relations in sphere of safety of functioning of transport ». Should not mislead and the term« pipeline transport "." On the mechanism of functioning and features of operation, it has, practically, no anything the general with vehicles of which it was a question above as it statsionaren, is motionless, is in a rest condition (elements in it are moving transportation subjects - oil, gas etc.) And, therefore, it is deprived one of the major discriminating qualities of mechanical vehicles - moving sources of the raised danger ».112 In this connection the act provided by item 269 UK the Russian Federation cannot be carried to a category of crimes in transport and« infringement of safety rules should be considered as a version of crimes economic or against the public safety, such as, for example, at conducting mountain, building other works (the item 21б UK) ».113 To a category of crimes in transport cannot be carried and the act provided by item 271 UK the Russian Federation. «Infringement of rules of the international flights is only one of versions of infringement of safety rules of movement and operation of air transport of which it is a question in a disposition of item 263 UK. If the legislator considered the first crime as an encroachment on public relations in sphere of safety of functioning air 112 In the same place. С.61. 113 In the same place. 104 Transport, its allocation in independent structure would be deprived any sense for it is completely covered by signs of item 263 UK the Russian Federation. It is necessary to conclude therefore, that criminalisation of the given act is undertaken by the legislator first of all for protection against encroachments on inviolability of frontier of Russia. Public relations in this area also are necessary for considering as object of the given crime ».114 Except listed in гл.27 UK the Russian Federations, in the criminally-legal doctrine to crimes in transport carry also some other crimes located in other heads UK the Russian Federation. The analysis of the points of view in this plane directly does not concern a theme of our research and, especially, it is presented in the literature by others авторами115. More close to sew to a theme this carrying out of classification of crimes in transport that on this basis to define adjacent and other structures of crimes about which it will be spoken in the present paragraph. Of classification of the crimes in transport containing in гл.27 operating UK the Russian Federation, in the literature the most various points of view are stated. As classification criteria their authors use «various factors, are based on operating system of the criminal legislation and consider really developed in the conditions of formation of this legislation, feature Designs of norms about crimes in transport ».116 not pressing in discussion concerning distinctions in classification of the last as in the literature to us it is already made, 117 we will stop on classification 114 In the same place. S.61-62. 115Тамже. S.62-63. 116 Tamzhe. С.65. 117 See: Korobeev A.I.decree. soch. S.63-66. 105 Crimes in transport which is equitable to interests of our research. It is a question of classification in which basis features of vehicles and some signs of direct object of these acts lay. In a science, it was offered by A.I.Korobeev, having presented in a following kind: 1) Crimes in sphere of safe functioning of railway, air, sea and river vehicles (the item of item 263,270,271 UK); 2) Crimes in sphere of safe functioning of road and transport means (item 264 UK); 3) Crimes in sphere of safe functioning of all kinds of mechanical vehicles (the item of item 266-268 UK); 4) Other crimes in transport carried to that legislator (item 269 UK); 5) Other crimes in transport carried to those by the doctrine (the item et. 166,211,227,350,351,352 UK).118 We believe, that the structures of crimes listed in item 1,3,4,5, on the same bases on which they are carried to this or that kind of crimes in transport, can be recognised by adjacent with the corpus delicti which is resulted in item 2 of classification (item 264) and being a subject of our research. Except adjacent, in UK the Russian Federation to contain also other structures of crimes with similar, with available in item 264 UK the Russian Federation, structure signs. These are the acts provided in UK the Russian Federation in: item 109 (death Causing on imprudence), item 118 (Causing heavy or average weight of harm to health), item 125 (Leaving in danger), item 143 (Infringement of rules of a labour safety), item 216 (Infringement of safety rules at conducting mountain, building or other works). In the same place. С.65. 106 As it has been considered in paragraph 1, the legislator, establishing the criminal liability for infringement of safety rules of traffic and operation of vehicles, means only those from these rules which directly regulate traffic safety and their infringements took place as a result of road and transport incident. Therefore the initial problem at qualification sodejannogo consists in definition of character of incident: whether it is connected with traffic or has other nature. The order of the account and registration of road and transport incidents is defined by Rules of the account of the road accident, approved by the Governmental order of the Russian Federation from June, 29th, 1995 № 647 in which all incidents depending on features of their mechanism are subdivided into nine kinds: collision, overturning, arrival on a standing vehicle, arrival on an obstacle, arrival in the pedestrian, arrival on the bicyclist, arrival on a cartage, arrival on animals, and also a descent of a tram from the rails, not caused collision or overturning; falling of transported cargo or the vehicle of a subject rejected by a wheel on the person or other vehicle; arrival on the persons who are not participants of movement; arrival on suddenly appeared obstacle (the fallen cargo, the separated wheel); falling of passengers from a moving vehicle or in salon of a moving vehicle as a result of sharp change of speed or a movement trajectory. It is necessary to carry to other incidents and such, as vehicle falling at difference of heights (from breakage, estakady etc.), its congress in the water environment, arrival on the drover leading on road of pack riding animals or herd. Such kind of road accident, as arrival on animals if people for an obligatory sign of the objective party of the crime provided ч.1 item 264 UK the Russian Federation, is thus have not suffered as cannot be considered criminal 107 Already earlier it was mentioned, causing as a result of infringement of rules of traffic and operation of vehicles, on the imprudence, heavy harm to health of the person or his death approach. The Russian Federations events which do not concern road accident do not fall under signs of item 264 UK. It is a question of cases at which there is no infringement of rules of traffic and operation of vehicles. As is known item 264 UK extends only on transportation cases a mechanical vehicle is crowded or cargoes, on vehicle towage, on other cases when the vehicle is used only for moving from one place in another. On the basis of other normative acts and by other rules, rather than considered by us in the work, are organised and the actions connected with use and operation of vehicles in automobile n motorcycle sports (competitions, demonstration performances, autorodeo etc.) are carried out . In cases when during them spectators have suffered, participants and the personnel serving actions, at performance by vehicles of the technological industrial operations which have been not connected with transportation of people or cargoes (a lining of tranches, manufacture of agricultural works, timber cutting, cargo handling works, installation of masts, support, etc.); resulted acts of nature, owing to infringement of safety precautions regulations and operation of vehicles, mechanisms, adaptations, etc.); in connection with attempt to commit suicide or the actions made in state of insanity, as a result of deliberate encroachments for a life and health of citizens or the actions directed on causing of a property damage (item 6 of Rules of the account of road accident). The analysis investigatory and judiciary practice shows, that sometimes courts apply item 264 UK the Russian Federation to those cases when it was necessary to apply 108 Other articles UK: about crimes against person, about infringement of rules of a labour safety, about military crimes. The important instructions on a case in point contain in Full court definition on criminal cases of the Supreme Court of the Russian Federation on business of the Miller for 2002 By the investigation made on business it has been established, that in April, 2001 the Miller during car repairs began to test brakes for territories of the garage which does not have for this purpose specially equipped platform that has entailed, as a result of poor made repair and careless actions of the Miller, death of victim Fominoj. The board has noticed, that, correctly having established committing a crime actual facts, the regional court unreasonably qualified actions of the Miller on ch. 2 items 264 UK the Russian Federation. Recognising condemned guilty, the court has referred that it breaks rules of traffic of vehicles owing to what victim Fomina has received heavy physical injuries from which has deceased in hospital. Such conclusion of court is represented wrong. Item 264 UK the Russian Federation provides a liability of infringement of rules of traffic. In the given case the Miller has admitted infringement of rules under safety precautions for the motor transport enterprises. This infringement took place not in the course of transport movement, and by manufacture of repair work. Such actions are not covered item 264 UK the Russian Federation. As the Miller was not the person, the official and the person responsible for a technical condition of vehicles, it cannot bear the criminal liability as well under item 143 UK the Russian Federation «Infringement of rules of a labour safety» and 266 UK the Russian Federation «Substandard repair of vehicles and their release in operation with technical malfunctions». Its actions should be qualified, starting with 109 Crime consequences, under item 109 UK the Russian Federation «death Causing on imprudence».119 At investigation of crimes in transport there is a problem of qualification of actions of drivers samodvizhushchihsja mechanisms (building cars, combines, tractors, etc.) as they can be used and on the direct appointment which has been not connected with traffic safety and as transport. On affairs such it is necessary to find out, whether mechanisms were used as vehicles or harm is caused by manufacture of other (not transport) works. In the first case public relations in traffic safety sphere — object of motor transportation crimes, and in the second - other public relations protected by item 109, 118, 143 UK the Russian Federation suffer, etc. So, in 2001г. In Kadom the Ryazan area at investigation of the crime made by Ryabov, it has been established, that that has decided to help to pull out on a tractor from a reservoir the car which has got stuck there. As a result of unsuccessful maneuver of a tractor, already was the car which has got out of a reservoir, has unexpectedly broken on the big and viscous depth and has instantly sunk. The driver who was in the car was lost. Originally Ryabov's actions have been qualified, as infringement of rules of traffic. However, considering, that Ryabov used the tractor not as a vehicle, safety of such actions is not regulated by traffic Rules. The Ryazan Provincial court retrained a crime, recognising in Ryabov's actions structure of causing of death on imprudence. In the court ruling it has been noted: «Actions of the driver of the tractor, made by manufacture of not transport works and entailed death The bulletin of the Supreme Court of the Russian Federation. 2002-2003. № 7. With. 35. On The victim, are qualified under articles of the Criminal code providing responsibility for crimes against person ».120 Despite the extensive judiciary practice, separate courts commit errors in qualification of actions of the persons operating building and agricultural machinery. So the regional court of of Istra has condemned on ch. 1 item 264 UK the Russian Federation the driver of tractor N who during field works, has driven on selhozrabochego V and has caused it heavy physical injuries. In this case the tractor was used on the industrial appointment, and its operation was not regulated at this time by traffic Rules. Therefore presidium of the Moscow provincial court obosnovanno Retrained actions N on ч.1 item 118 UK the Russian Federation. As follows from explanations of Plenums of the Supreme Court if the person operating a tractor or other self-propelled car, has broken rules of manufacture of certain works, safety precautions or other rules of a labour safety, at least these infringements and have been admitted during car movement, sodejannoe it is necessary to qualify under articles UK providing the criminal liability for infringement of these rules, and in corresponding cases - for crimes against a life and health of citizens, destruction or property damage (item 109, 118, 143, 216 UK).121 Archive of the Ryazan Provincial court. 2001. Business 1528. See: item 7 of the Decision of Plenum of the Supreme Court of RSFSR from April, 23rd, 1991 № 1 «About judiciary practice on affairs about infringements of rules of a labour safety and safety of mountain, building and other works»; item 8 of the Decision of Plenum of the Supreme Court of RSFSR from October, 22nd, 1969 № 50 «About judiciary practice on affairs about the crimes connected With infringement of safety rules of movement and operation of vehicles. And also with their wrongful occupancy without the purpose Ill solving a question on what instructions were broken by the driver - the traffic or safety precautions regulation Rules, regulating manufacture of certain works, it is necessary to consider all set of concrete circumstances, a role of the victim and its relation to made works. On sense ч.1 item 264 UK the Russian Federation the person operating agricultural, special or other self-propelled car, can bear responsibility on this norm only in that case when the crime is connected with infringement of safety rules of movement and transport operation. If such person, agrees explanatories of Plenum of the Supreme Court of the USSR in the decision №11 from October, 6th 1970г. «About judiciary practice on affairs about motor transportation crimes», has broken rules of manufacture of certain works, safety precautions or other rules of a labour safety (at least these infringements and have been admitted during car movement) actions guilty come under to qualification under articles UK providing a liability of infringement of these rules, and in corresponding cases-for crimes against a life and health of citizens, destruction or damage of property (item 5), sh Separate courts as shows the practice analysis, nevertheless commit errors in qualification of actions of the persons operating tractors and other self-propelled cars. So, Presidium of the Supreme Court of RSFSR Plunders »; Definition of the Supreme Court of RSFSR on business ZHakuna, 1984: the Bulletin of the Supreme Court of RSFSR. 1984. № 4. With 14. Hereinafter (earlier) those decisions of the higher degrees of jurisdiction which have kept the urgency and now are used as examples, and also do not contradict the current legislation of the Russian Federation. 122 Collections of decisions of Plenums of the Supreme Courts of the USSR and RSFSR (Russian Federation) on criminal cases. M: Firm "SPARK", 1995. С.55. 112 Retrained actions In, With ч.2 item 211 UK RSFSR (ч.2, item 264 UK the Russian Federation) on item 106 UK RSFSR (item 109 UK the Russian Federation) and has thus specified the following. V worked as the tractor operator in lespromhoze. In day of incident the tractor which it operated, was used for works in wood on wood preparation. During straightening of one of stacks, V, being in a state of intoxication, has shown imprudence. Not having convinced of absence about a stack of people, it began to straighten the ends of trunks and has pressed a tractor of foreman N to a stack, having caused to it physical injuries from which she has deceased. Thus, during incident V on a tractor carried out production functions and did not break safety rules of traffic and motor transport operation. In actions V infringement of rules under safety precautions takes place at performance of industrial works, but, considering, that it the official was not, its actions on the character 123 Are death causing on imprudence. In other example, by Lublin regional court of of Moscow L it is condemned for infringement of safety rules of the movement, entailed death of the victim. Act is made under following circumstances. Operating technically serviceable autograder, L followed on proezzhej to a part of under construction road through the Moskva River. On departure from the bridge, following a backing, it has made arrival on pedestrian K therefore that has deceased on a place. The presidium of the Moscow city court a sentence has cancelled also business has directed on new investigation. Thus the Presidium has underlined, that on business there were obscure basic questions: at what infringement of rules - traffic or manufacture of certain works - 123 TSit. From: the Scientifically-practical grant on application UK the Russian Federation/under the editorship of Century MLebedeva. TH.: Norm, 2005. S.619-620. 113 Was lost K, and of what degree in it it is guilty L? As by bodies of preliminary investigation it is not found out, which rules have been broken L, on ч.2 item 211 UK RSFSR (ч.2 item 264 UK the Russian Federation) it is impossible to recognise qualification of its actions доказанной.124 The problem of differentiation of motor transportation and other crime can arise and in case of fulfilment of socially dangerous act at a driving if it was used not for the designated purpose (for example as draught force) as it took place in business Ovchenko which but the request managing commodity base Volodinoj tried to shift by means of car "Field" from a place the trailer bolshegruza. As a result of too strong push of the car the trailer has begun movement and has knocked down two workers. The inspector has involved Ovchenko in responsibility for a motor transportation crime. As qualified this crime and court. The full court on criminal cases of the Supreme Court of the Russian Federation retrained actions Ovchenko on article about death causing on imprudence as the death has been caused victims by actions of the driver of the car by manufacture of not transport works. Infringements of rules of technical operation of transport, the safety precautions by manufacture of various works cannot be qualified under item 264 UK the Russian Federation as encroach on other objects (safe working conditions, a life and health of the person, etc.). In practice of investigation and judicial disposal of legal proceeding about road and transport crimes there are the separate errors, expressed that organs of inquiry and court actually establish not a causal relationship, and is only pure external sequence between infringement corrected traffic and operation of vehicles and come after this consequences. Similar took place at investigation and consideration See: the Bulletin of the Supreme Court of the Russian Federation. 1992. №4. With. 13-14. 114 In court of the road accident which have occurred in 2002 in Smolensk area. Citizen M, working as the driver in Open Company "Трамп" under instructions of the director carried employees after a feast on houses by the lorry which has been not adapted for transportation of people. All road its passengers continued to have fun roughly, trying to show each other really kaskaderskie tricks. Driver M stopped time and again the car and asked passengers to calm down, but its words have not conceived due action. On the next abrupt bend one of passengers U has tried to show the next trick. But it was not kept and has fallen, has hit a head about the earth, and in a consequence, not coming about consciousness, has died in hospital. City court of of Smolensk recognised driver M guilty that it carried the drunk employees of Open Company "Трамп" in the lorry not equipped for transportation owing to what there was an accident to human victims. Hence, the court recognised causal relationship presence between the admitted M infringements of service regulations of vehicles and death At. We believe, that between the infringement admitted by driver M, and death U there is only external sequence of events which cannot be considered as a causal relationship. Apparently from materials has put the immediate cause of approach of death U infringement of service regulations of the vehicles, made M by transportation people by the lorry which has been not adapted for this purpose was not. Thus the driver stopped time and again a motor vehicle and asked passengers to calm down, sit quietly, not to make a different sort tricks etc., but has not been heard. As a result at attempt to show next trick U it was not kept, has dropped out of the car and, having hit a head about the earth, was traumatised, of which has died in hospital, not coming in consciousness. We believe, that in the presence of such circumstances, to court followed cease criminal case in the relation 115 M in the absence of the corpus delicti. Meanwhile the Provincial court of of Smolensk, having taken into consideration actions from the victim in a considered situation, has only lowered punishment to the driver of M. In our opinion, the consequence and court, having established the infringement fact, harmful consequences and external (in time) sequence of events, should not consider, that the question on causal relationship presence is already solved. It is necessary to define precisely a role and value of the fact of infringement of corresponding rules in the general chain of succession of events. In most cases this problem does not represent special complexities and dares rather simply. Other business if other persons were involved in succession of events or their development was influenced by forces of the nature, technical features of transport etc. In a causal relationship with the come consequences infringements of safety rules of movement and the operation, admitted not one driver, and two and more can consist. Therefore to provide completeness, vsestoronnost and objectivity of investigation and a legal investigation in court, it is necessary to consider all complex of co-operating forces and the circumstances characterising movement at definition of the reason of road accident. In cases of infringement of Rules several participants of traffic who lead to approach of the harmful consequences specified in item 264 UK the Russian Federation as considers in the issledovanin L.V.Ljubimov, three basic models of interaction of participants of road and transport incident are possible, each of which is interfaced with ~ 125 Independent criminally-legal estimation of guilty persons. 125 Ljubimov L.V.problem of qualification of the motor transportation crimes connected with infringement of rules of traffic and operation of vehicles//Actual problems of crime control: the Collection of scientific articles. - an eagle: the Ministry of Internal Affairs of the Russian Federation, the Oryol Juristic institution, 1998. With. 12-16. 116 For the first model that as the infringer of the traffic regulation one participant of traffic to whom it is damnified acts is characteristic. However there is it as a result of guilty behaviour of other participant of the road accident also breaking rules of traffic and operation of vehicles. For example, when the pedestrian passes a carriageway under a sharp corner from left to right on a course of movement of vehicles, creating thereby a hindrance for normal movement of transport. And the driver, seeing the given pedestrian and having technical possibility for a vehicle stop, has not accepted timely measures to braking. As a result of arrival on the pedestrian heavy harm to its health has been done. In this case infringement of safety rules of movement and the transport operation, admitted prichinitelem harm - the driver, is in a direct causal relationship with socially dangerous consequences specified in item 264 UK the Russian Federation. In created conditions the driver though was able prevent approach of harmful consequences, but did not use the possibility presented to it to prevent their causing by timely and accurate performance of rules of traffic. Owing to it, sodejannoe the driver contains the elements essential to the offence, provided by item 264 UK the Russian Federation. The fault of the sustained pedestrian in infringement of rules of traffic comes under to the account at awarding punishment as the circumstance softening responsibility of the guilty driver-prichinitelja of harm. In these purposes already on stages of preliminary investigation at a charge formulation it is necessary to specify, that guilty infringement by the sustained pedestrian of safety rules and movement promoted fulfilment by other participant of traffic - the driver - a crime provided by item 264 UK the Russian Federation. In the second model of interaction of participants of traffic as the infringer of rules of traffic and suffered from 117 Road accident acts the same person. However unlike the first model causing to it of harm is a consequence of innocent behaviour of other participant of traffic in which actions there are no infringements which are in a causal relationship with come consequences. As an example it is possible to result a situation when the driver operates the car on a lane which was run across by the elderly citizen and has stopped on an axial line of a carriageway. Having been frightened of a signal of the counter bus, it has sharply turned, has rushed back and has pleased under car wheels. In this case prichshshtel harm - the driver of the car has not broken a traffic rule. The sustained citizen in infringement of these Rules obliging the pedestrian, not had time to finish transition to be on a line dividing transport streams of opposite directions, has created a hindrance to vehicles, having begun unexpected intensive movement in the opposite direction, as has served as the road accident reason. Primenitelno to the second model prichshshtel harm - the driver, operating it is innocent and being unable in the created situation to prevent injury, the Russian Federation because of absence in its actions of structure of infringement of safety rules of movement and operation of vehicles does not come under to the criminal liability under item 264 UK. Wines in creation of the emergency conditions which have led to road accident, no less than the come consequences, are in full assigned to the victim. For the third model of interaction of participants of traffic infringement of safety rules of movement and operation of vehicles by several (mainly two) participants of traffic is characteristic. Damnified by them is cumulative result of their guilty behaviour. The causal relationship between actions guilty and come Here is available 118 Socially dangerous consequences. The third model can express in two kinds of dependence on the one to whom the damage - to both guilty or to the third parties is caused. In the first case each of both offending safety rules of movement and operation of vehicles of pesetas the criminal liability for injury to other participant of road accident. Thus each of them simultaneously represents itself as both guilty, and the victim. And accordingly actions of each of them are qualified by this or that part of item 264 UK the Russian Federation. As an example here can serve road accident because of both drivers at an adjustable crossroads. One of them has left on a red signal of a traffic light. Another, seeing it, in infringement of rules of traffic has not lowered speed and has not accepted measures to a car detour, continued movement, submitting light and sound signals to the driver of the motor vehicle which have left on red light. Having noticed each other, both drivers had technical possibility to avoid collision, however have continued movement, ignoring the created dangerous situation. In case of approach of corresponding consequences they come under to responsibility on ch. 1 items 264 UK the Russian Federation. At fulfilment of careless crimes which the act concerns also, provided items 264 UK the Russian Federation responsibility soprichinitelej harm submits to certain rules as in the consequences caused to one of participants of road accident, there is a share of fault of another. Therefore the given circumstance should be considered at definition of concrete punishment to each of them, rather them sodejannogo. In the second case when harm is caused to the third parties, approach of criminal consequences grows out of actus reus of both participants of road accident - soprichinitelej harm. So their actions are qualified equally. At the same time the estimation of fault of participants of incident as mutual obliges to draw one more conclusion. Its essence that fault of one of the specified persons in causing 119 Criminal consequences acts during too time as the circumstance softening responsibility other guilty — soprichinitelja harm. The above caused sodejannym harm from one of them in a road and transport crime, the in bolshej to a measure it should be considered at awarding punishment to another towards softening or the decision of a question on clearing of the second from the criminal liability. Thus, at simultaneous infringement by several participants of road accident of rules of traffic and operation of vehicles all of them should bear responsibility under item 264 UK the Russian Federation. Qualification of actions of each of them is carried out by this or that part of named article depending on weight of the harm caused by another of the participant of road accident, instead of. The corpus delicti provided by item 264 UK the Russian Federation, is available only in the event that infringement of rules of traffic has entailed the certain consequences specified in the law. In the legal literature offers on necessity of an establishment of the criminal liability of drivers of vehicles for infringement of rules of traffic and operation of vehicles even if it and has not entailed any harmful consequences sometimes expressed. According to this point of view, a prime consequence of infringement of rules of traffic and operation of vehicles are emergency conditions, i.e. creation of real possibility of criminal result, and the come result - the secondary consequences, a finishing element of the objective party. Consideration of consecutive succession of events in the mechanism of the road accident playing the important role for an establishment of a causal relationship shows, that it is really expressed in the following: infringement Lukjanov V.V. Problemy of qualification of road and transport crimes. - M, 1979. С.12. 120 Rules - emergency conditions - socially dangerous consequences. At the same time, emergency conditions are not that criminal consequence with which the legislator, connects responsibility in item 264 UK the Russian Federation. Emergency conditions - are only certain stage in development of careless causing and cannot be equal to criminal consequences, as to an element of the objective party of a careless crime. «Other decision of a question would oblige pravoprimenitelnye bodies every time to establish, at fulfilment of considered crimes, a causal relationship and with real possibility of approach of a socially dangerous consequence, and with the come result. However real possibility of approach of harm can have only independent criminally-legal value when about it it is directly specified in the law». In the course of qualification of actions of drivers of vehicles it is necessary to consider their behaviour after committing a crime. It not always appears lawful, therefore quite often demands an additional criminally-legal estimation. After cancellation in a new wording UK the Russian Federation (FZ the Russian Federation from 08.12.2003) articles 265 «Leaving of a place of road and transport incident», creating in many cases item 125 duplication «Leaving in danger», actions of the driver, offending corrected traffic and operation of the vehicles, the entailed causing to the victim of heavy harm to health and obviously left without the aid of the victim in a condition dangerous to a life, it is necessary to qualify under the cumulative offences, provided items 264 and item 125 UK the Russian Federation. Tjazhkova I.M.careless of a crime with use of sources of the raised danger. - Spb.: Publishing house «JUridich.tsentr the Press», 2002. With. 127. 121 If the driver was not guilty of criminal infringement of rules of traffic and operation of vehicles, but the life or health of the victim have been threatened as a result of incident with a vehicle operated it default by the driver of a duty on rendering assistance to the victim attracts responsibility under item 125 UK the Russian Federation (leaving in danger). At the same time situations when item 125 UK the Russian Federation is inapplicable are possible. For example, not based on the law will be the sentence concerning the driver condemned under item 125 UK the Russian Federation if the death of the victim has come instantly, at the moment of crime in transport fulfilment. By Sasovsky regional court of Ryazan area G has been condemned on ch. 2 items 264 and item 125 UK the Russian Federation. The presidium of the Ryazan provincial court obosnovanno has cancelled a sentence regarding condemnation G under item 125 UK the Russian Federation and has ceased business in this part in the absence of the corpus delicti, recognising that the victim has died instantly as a result of an open craniocereberal trauma with crisis of bones of the arch and the skull basis. As forensic pathology has confirmed, at such damages the help to the victim could not be оказана.128 Certain difficulties can arise at qualification of the road and transport crime made during towage of cars. In this case on sutn there is an association of actions on management of two cars, each of which still has rather independent variants of decision-making. From here it is possible to draw a conclusion, that in case of infringement of rules by one or both drivers, entailed the consequences specified in item 264 UK the Russian Federation, responsibility under this article are born by the person, offending. At the same time it is necessary to notice, that the establishment of signs of fault in a considered case depends on finding-out of possibilities for Archive of the Ryazan provincial court for 2001, business № 30827. 122 The driver, especially towed transport to observe point Corrected traffic which has been formally (objectively broken. Situations when one of drivers could not make demanded maneuver owing to infringement of rules by another are possible. Certainly, in that case it should not bear responsibility for the come consequences. Criminal consequences of road accident can be result of difficult interaction of variety of factors, among which and misbehaviour of drivers of vehicles and other participants of traffic, a technical condition, both vehicles, and means of regulation of traffic (for example, a faulty traffic light); and a condition of a road covering, and adverse factors of an environment (a fog, ice, dark time of days, a full moon, etc.). At investigation of the crime qualified under item 264 UK the Russian Federation, the road accident mechanism which is understood as the difficult dynamic system characterised by interrelation of behaviour of the driver (drivers) of a vehicle (means) with concrete road conditions and involving natural development of a dangerous road situation in emergency and approach criminal результата.129 should be established Road conditions represent set of available road conditions, the organisations and characteristics of traffic, vehicles, the participants of traffic co-operating in a place of fulfilment of road accident. Road conditions define a mode of movement of a vehicle, give the chance to the driver to be guided correctly and simultaneously render The comment to the Criminal code of Russian Federation / Otv. red. A.A.Tchekalin; Under the editorship of V.T.Tomina, V.R.Ustinova, V.V. Sverchkova-2 izd., ispr. And dop. - M: Jurajt-Izdat, 2004. С.818. 123 Psychophysiological influence on its condition which can generate the road accident reasons. The moment of occurrence of a dangerous situation which comes under to an obligatory establishment for definition of correctness and timeliness of reaction of the driver in this or that developed road situation, conformity of its behaviour to requirements of safety rules of traffic and operation of vehicles, causal relationship presence between this behaviour and the come harmful consequences enters into the road accident mechanism. If at the moment of occurrence of a dangerous situation the driver has technical possibility to avoid road accident at an emergency of this possibility there is no, therefore a driver, irrespective of the reaction and technical possibilities of a vehicle, not in a condition to prevent road accident. So, the Presidium of the Supreme Court of the Russian Federation recognised as proved condemnation of bus driver E which has created an emergency in which result other motor vehicle has brought down three women, mortally having injured them, and has confirmed innocence of the driver of this motor vehicle С.130 As follows from item 1.5 of Rules of Traffic, participants of traffic should operate so that not to create danger to movement and not to cause harm. At the same time, the driver operating a vehicle with observance of rules of traffic, is not obliged to start with possibility of gross violation of these rules other drivers if it does not and could not expect such нарушение.131 130 Bulletin of the Supreme Court of the Russian Federation 1997. №11. С.22. 131 Collection of decisions of Plenums and definitions of boards of the Supreme Court of the USSR on criminal cases (1959-1977). M, 1973. With. 352 354. 124 Errors of qualification of the crimes, connected with difficulties of allocation among themselves. Differently, the subjective party is characterised by heterogeneity of the mental relation guilty to actions and its consequences. The judiciary practice analysis shows, that safety rules are broken, basically, deliberately, the guilty concerns consequences of these infringements carelessly (in the form of criminal flippancy or negligence). Meanwhile, in the literature the problem of differentiation of intention and imprudence in fulfilment of road and transport crimes remains, according to V.V. Lukjanova while not resolved, that does not allow to differentiate and qualify act adequately. V.V. Lukjanov believes and logically proves the judgements, that researchers of the subjective party of the crime provided by item 264 UK the Russian Federation, hold back an intention problem in considered criminal actions, seeing in them only imprudence of behaviour of the driver. Thereupon attracts attention the decision of Plenum of the Supreme Court of the USSR from October, 6th 1970г., in which to be said, that the analyzed crime should be considered as made on imprudence as the subjective party of this act is defined by the careless relation of the person to possibility of approach of socially dangerous consequences at infringement of safety rules of movement by it and operation of vehicles. If on business it will be established, that causing of death or harm to health of the victim was covered by intention guilty, sodejannoe follows Lukjanov V.V. Problemy of qualification of road and transport crimes and administrative violations. Special questions criminal and administrative law. - M: Dashkov and To, 2003. With. 30. 125 To consider as a deliberate crime against a life and health of citizens. When guilty two independent crimes are consistently committed, one of which was transport, and another - against a life or health, its actions come under to qualification on set of specified crimes, In judiciary practice, according to A.N.Korbeeva, ideal set of similar crimes is not excluded also. M, operating in a state of intoxication motor vehicle ZiL-130, from hooligan promptings on the big speed has started to pursue motor vehicle ГАЗ-53, called in that on the right to the left of it, than endangered the people who were in the car. At next overtaking M, having substituted a back board of the motor vehicle, has struck in the left board motor vehicle ГАЗ-53. From the received blow it has moved down in a ditch, and to the passengers who were in a body, physical injuries of different severity level have been caused. The hooligan actions accompanied by infringement of safety rules of movement, obosnovanno have been qualified as hooliganism and motor transportation 133 Crime ». S.N.Dmitriev considers, that «for the modern person the car is not simply utilitarian mechanism, but also means of self-expression, self-affirmation, expansion of an outlook, realisation of aesthetic views and creative bents. In possession the car n its use in many cases observes a game element. It is quite natural, that the car not only facilitates existence of the person, but n simultaneously raises for it a threshold of certain material and morally-physiological costs, negative impact on character and property of the person can make. Owners of expensive cars quite often feel the superiority over others not only because of possession prestigious means of transportation, but also from Korobeev A.I.crime. Spb., 2003. СЛ36. 126 Possibilities to realise their high-speed and dynamic qualities it is direct in the course of traffic. On the other hand, in public consciousness there is a process of associative connection of the individual to the car belonging to it, power and which technical advantages contact possibilities of the owner ».134 By results of our research, overwhelming majority of the interrogated owners of prestigious marks of cars meaningly and practically always go on overtaking of more modest cars. And about 34 % of owners of expensive and powerful foreign cars have frankly expressed, that «consider as the debt» to show force on road (to develop «beshennuju speed», impudently to "crop, blind headlights to deafen by a signal, etc.). So the driver of the foreign car of the high class, angered by that its going in advance less powerful car does not let its pass, makes overtaking with the exceeded speed. This maneuver in front of the most overtaken car comes to an end. The driver of the last, in order to avoid collision dangerous to it, is forced to turn aside abruptly, not having thus possibilities to expect a consequence of the actions. The car which it operates, overturns in a ditch, the driver is traumatised, the passenger perishes. It is an example of the committing a crime provided ch. Z item 264 UK the Russian Federation. Example of the murder made with eventual recklessness, the following case can serve: The driver of a powerful lorry, making overtaking, left on a strip of counter movement, forcing drivers of the counter cars moving on this strip to be rescued from collision, Dmitriev S.N.traffic police: the Grant for employees of motor licensing and inspection department. - m: Spark, 2000. With. 9. 127 Abruptly to turn aside. If at such unprepared maneuver on a car way the object for blow blow in which result there will be victims, can occur comes across. Thus, the driver, deliberately breaking traffic rules, understands, that creates emergency conditions, supposes its occurrence, expects approach possibility in this connection socially - dangerous consequences, not wishing, but meaningly supposing these consequences, or concerning them is indifferent. As motive of such actions the aspiration to move probably serves, showing thus egoistical bents, neglecting safety of other persons faster. The majority of arrivals on pedestrians because of drivers is made on imprudence. However cases of deliberate creation of emergency conditions at which arrivals on pedestrians take place are possible also. For example, reacting to a red signal of a traffic light, drivers have stopped before a pedestrian crossing, but one infringer, despite of a signal and, not reducing speed, tried to slip through transition. And during this moment because of standing cars there was a pedestrian who has appeared on a way of the infringer and by it has been brought down. It is represented, that the subjective party sodejannogo is characterised by eventual recklessness: it moved on forbidding signal, supposing, that on a pedestrian crossing there can be people, has neglected it. Difficulties in differentiation of structures of crimes and V.V. Lukjanov's their wrong qualification connects with omissions and lacks of the theory of criminal law concerning structure of road and transport crimes. To correct this situation, he considers necessary charge in fulfilment of a road and transport crime or socially dangerous administrative violation to make only in from communication with such infringements of rules of traffic which have created emergency conditions. 128 As to the subjective party of a crime for the impartial assessment sodejannogo it is necessary to discriminate intention and imprudence in their fulfilment which, according to V.V.Lukjanova, should be defined on character of the relation of the infringer to creation emergency обстановки.135 In the road and transport crimes made by the driver, wrongful act infringement of rules of the traffic, creating emergency conditions which bear in itself threat of blow of the car deprived of appropriate management, and as result of this action - emergency conditions serves. In other words, the fault form in fulfilment of a road and transport crime by the driver breaking rules of traffic, is defined on character of its relation to the emergency conditions created by it as a result of this infringement. If the driver has deliberately created emergency conditions thereby it supposed possible injury. The estimation of the subjective party of a road and transport crime and intention revealing in its fulfilment continues to remain one of the most actual problems. So, for example, the road and transport crime with injury of a life and to health of the victim cannot be considered as a crime against a life or health. At the same time, in actions of the driver can break the express intent rules of traffic and create emergency conditions with this or that purpose. For example, such express intent meets, when the driver deliberately makes overtaking, and then sharply brakes in front of the car overtaken by it. Thus it has for an object specially to "substitute" the car, to receive "indemnification" from the driver who not in time 135 Lukjanov V.V. Problemy of qualification of road and transport crimes and administrative violations. Special questions criminal and administrative law. - M: Dashkov and To, 2003. With. 30-34. 129 To press a brake or to turn aside, to avoid collision. However as a result of created emergency conditions can be caused not only a property damage, but also threat to life and to health of drivers, passengers (and not only these two cars), and also other cars and pedestrians is created. One more challenge should be solved pravoprimenitelju when it is necessary to differentiate the careless form of fault and innocent injury. By quantity of such disputable moments dorozhno - crimes in transport far advance any other careless public act. Studying of criminal cases shows, that cases when the same criminal case repeatedly stops in connection with absence of fault of the driver are frequent, and then the opposite decision is made. The circumstances complicating process of an establishment of fault have not only subjective, but also an objective indicator. In summary we will notice, that in practice quite often there are situations when as a result of road accident the harmful consequences provided by various parts of item 264 UK the Russian Federation are caused. How to qualify such actions, explain P.V.Zamoskovtsev and A.I.Korobeev: infringement of rules of traffic and operation of the vehicles, entailed approach of the consequences provided by several parts of considered article UK, but constituting one crime, it is necessary to qualify by that part of article which provides responsibility for heaviest of the come consequences. Zamoskovtsev P. V, Korobeev A.I.qualification of crimes in transport by law-enforcement bodies: the Manual. - Khabarovsk: the Khabarovsk higher school of the Ministry of Internal Affairs of the USSR, 1999. With. 29-30. 130 In this case, as marks B.A.chicken, the rule operates: the norm of the criminal law punishing for causing of heavy harmful consequences, covers also all other less heavy homogeneous harmful consequences which have resulted fulfilment any преступления.137 Infringement by the person operating a vehicle, safety rules of movement and the transport operation, the entailed approach of the consequences provided by several parts of item 264 UK, but constituting one crime, it is necessary to qualify by that part which provides the criminal liability for heaviest of the come consequences. On set criminal actions with the specified various consequences should be qualified when they are made at various times and the come consequences have grown out of the several mutually not connected infringements of safety rules of movement and operation 138 Vehicles. Under cumulative offences of act with the specified various consequences should be qualified only when they are made at various times and the come consequences have grown out of the several mutually not connected infringements of rules of traffic and operation of vehicles. Especially it is necessary to notice, that in practice still causes difficulty and differentiation of road and transport crimes from administrative offences. The corresponding analysis Corresponding norms of the criminal and administrative legislation allows to draw a conclusion, that the basic differentiating sign here is social danger degree sodejannogo. It depends 137 Kurinov B.A.motor transportation of a crime (qualification and punishment). - M, JUrid. Lighted., 1970 with. 48. 138 Items 8 of the Decision of Plenum of the Supreme Court of the USSR №11. 131 From a number of the moments, including from presence or absence of consequences as a result of the admitted infringements. The criminal liability for a road and transport crime unlike administrative offence, comes not for the fact of infringement of rules of traffic, and for such infringement which has entailed causing of heavy harm to health or  destruction of people. Because road and transport crimes are closely connected with administrative violations in the field of safety of traffic and operation of vehicles, for attraction of the person to the criminal liability under item 264 UK the Russian Federation it is necessary to establish all elements essential to the offence. As has shown studying of investigatory practice, at qualification of road and transport crimes the errors connected with discrepancies in an establishment of the list of broken rules and instructions are committed. So, comparison pravoprimenitelnyh certificates of preliminary investigation of crimes shows, that in investigatory divisions there is a different approach. In one departments inspectors specify infringement to ten points of Rules of traffic, in others - from one to three-four points. It turns out, that in the first case to the driver all instructions broken by it irrespective of, whether there are they in a causal relationship with the come consequences are made. For example, in materials of criminal cases there are references to infringement of item 2.1.1 of Rules of the traffic obliging the driver to have at corresponding documents. Happens, that at a substantiation of the criminal liability inspectors refer to item 2.5 of Rules regulating behaviour of the driver after road accident. Certainly, the infringement containing in this point of the instruction, should be reflected in a descriptive part of the bill of particulars and can be considered at awarding punishment under item 264 UK the Russian Federation, but in any way at qualification of the crime provided by item 264 UK the Russian Federation, as 132 Infringement of the given instruction at all does not cause approach previous it on result time. The same errors meet and at the analysis of judiciary practice of application of the legislation on responsibility for road and transport crimes. Sometimes to drivers at an estimation of the crime committed by them the infringements which are not concerning a crime made by them, for example, provided items 1.3 of Rules are made, only in the general form concerning duties of participants of movement to carry out traffic Rules. The inexact reference to infringement of rules of traffic and operation of vehicles not so is harmless, as it can seem at first sight. Instruction infringement even one point of Rules in a combination to the come consequences which are resulted in item 264 UK the Russian Federation, already forms the corpus delicti. Hence, presence in the bill of particulars of the reference to the instruction which has not been actually broken or its infringement has not caused approach of criminal result, is equivalent to imputation J. 139 The nonexistent facts of criminal behaviour.
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A source: PERFILOV VLADIMIR PAVLOVICH. Theoretical and practical questions of criminally-legal qualification of infringements of rules of traffic and operation of vehicles / the Dissertation / Moscow. 2008

More on topic § 2. Otgranichenie the corpus delicti provided by item 264 UK the Russian Federation from adjacent and other structures of crimes.:

  1. 2. Otgranichenie the corpus delicti provided by item 264 UK the Russian Federation from adjacent and other structures of crimes.
  2. CHAPTER 2. The QUALIFIED KINDS of INFRINGEMENT of RULES of TRAFFIC And OTGRANICHENIE the CORPUS DELICTI PROVIDED by ITEM 264 UK the Russian Federation, FROM ADJACENT And OTHER STRUCTURES of CRIMES.
  3. CHAPTER 2. The QUALIFIED KINDS of INFRINGEMENT of RULES of TRAFFIC And OTGRANICHENIE the CORPUS DELICTI PROVIDED by ITEM 264 UK the Russian Federation, FROM ADJACENT And OTHER STRUCTURES of CRIMES.
  4. the CORPUS DELICTI PROVIDED by ITEM 264 UK of the RUSSIAN FEDERATION
  5. § 1. Qualification of the crime provided by item 258.1 UK the Russian Federation, and otgranichenie from adjacent crimes and offences
  6. § 2. The objective party of the corpus delicti provided by item 258.1 UK the Russian Federation
  7. Chapter 2. The criminally-legal characteristic of the corpus delicti provided by item 258.1 UK the Russian Federation
  8. § 4. The qualified corpuses delicti, provided by item 258.1 UK the Russian Federation
  9. Otgranichenie terrorism from adjacent structures of crimes
  10. CHAPTER 1. The OBJECTIVE And SUBJECTIVE ELEMENTS ESSENTIAL TO THE OFFENCE, PROVIDED by ITEM 264 UK of the RUSSIAN FEDERATION
  11. § 2. Features of structures of the administrative violations provided by item 5.35 KoAP the Russian Federation
  12. CHAPTER 3. CRIMINALLY-LEGAL ESTIMATION EVTANAZII AS VERSIONS of MURDER And OTGRANICHENIE FROM ADJACENT STRUCTURES of CRIMES
  13. § 5. Efficiency of punishment for infringement of rules of traffic on an example of item 264 UK the Russian Federation
  14. §2. Qualification and otgranichenie false witnesses from adjacent crimes
  15. § 3. The subjective elements essential to the offence, provided by item 258.1 UK the Russian Federation
  16. § 2. Perfection of sanctions for a crime provided by item 258.1 UK the Russian Federation, with a view of differentiation of the criminal liability
  17. §1. Qualification and otgranichenie a false denunciation from adjacent crimes
  18. 2. Criminal trespasseson the adjacent rights are provided item L.335-4 of the Code about intellectual property of France.
  19. § 5. Questions otgranichenija deliberate destructions or damages of another's property from adjacent structures of crimes
  20. the moment of the termination of the crimes provided by articles 198 and 199 UK Russian Federation.