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§1. Qualification and otgranichenie a false denunciation from adjacent crimes

From questions of the criminally-legal characteristic of a false denunciation and false witness it is represented expedient to pass to problem directly connected with them otgranichenija the named encroachments from adjacent crimes.

Revealing of features of acts considered by us promotes correct qualification of actions of the guilty person and allows to avoid further errors in pravoprimenenii.

At research of the given question we recognise that in the domestic criminally-legal doctrine qualification of crimes is connected with pravoprimenitelnoj activity. Thus qualification represents simultaneously and process of an establishment of signs of a crime in concrete socially dangerous act, and the result of this activity embodied in the reference to article UK the Russian Federation which contains in the corresponding remedial document. Here finds reflexion interbranch character of qualification of the crimes, consolidating the material and remedial maintenance of analyzed concept. We will underline, that qualification is only one of elements of application of the criminal law which number remedial activity to destination punishments and to clearing of it concerns, and also under the decision of other questions connected with it. Finally qualification of crimes acts as the integral link between the basis of the criminal liability and the sanction concrete ugolovnopravovoj norms [227].

Further we will consider in detail most typical cases otgranichenija a false denunciation from adjacent crimes.

Differentiation of a false denunciation and slander is traditionally spent, responsibility for which is established item 128 [228] UK the Russian Federation. The given structures of crimes are similar that, as in that, and in other case the guilty person informs false data. However at all seeming similarity the mentioned acts have enough of distinctions.

As fairly marked A.S.Gorelik, the basic differences between the false denunciation and slander consist that these ugolovnopravovye norms are competing: slander - the general provision, a false denunciation - partially special. Feature of a competition of such norms consists available at the special provision of own basic object which is not coinciding with the basic object of the general provision which in the special provision is additional and facultative, that is broken not in all случаях1.

So, at them objects are various: the false denunciation is characterised by an encroachment on the public relations providing normal activity of law enforcement bodies and vessels on delivering justice (it is its basic object); slander - on honour and advantage of the person which can act as additional object of the encroachment provided by item 306 UK the Russian Federation. The last occurs in the event that in a false denunciation the instructions on the concrete person contain. Absence of such information excludes also presence of additional object., that the message containing only not concretised judgements of a general plan about fulfilment by any person of crimes or instructions on the certain person in the absence of the facts supporting the corresponding information from this follows, should be qualified as slander, but not as a false denunciation.

The maintenance of a false denunciation are data mismatching the validity on ostensibly perfect crime; slander - any data, which can discredit honour and advantage of the concrete person (both about offences, and about immoral acts) 1.

At the same time qualification of act simultaneously under item 306 and 1281 UK the Russian Federation if the person has informed both on a crime, and about immoral behaviour is possible. It testifies to real set of actions of the guilty person.

Besides, in most cases the false denunciation is addressed law-enforcement and other bodies about which it was spoken above; slander - to the third (any) persons surrounding.

From the subjective party lzhedonoschik, as a rule, has the purpose excitation of criminal case and the subsequent impeachment innocent though the concrete person at fulfilment of a false denunciation can and not appear; the slanderer wishes to discredit honour and advantage of the slandered person.

Plenum of the Supreme Court of the USSR paid attention to the specified features of a false denunciation and slander in 1979, explaining in item 14 of the decision from 25.09.1979 № 4 «About practice of consideration by vessels of complaints and affairs about the crimes provided by item 112, ch. 1 item 130 and item 131 UK RSFSR», that the slander connected to charge in committing a crime, differs from a false denunciation that at a false denunciation the intention of the person is directed on attraction of the victim to the criminal liability, and at slander - on humiliation of its honour and advantage. In this connection at a false denunciation of data on the crime ostensibly made by the victim are informed, as a rule, to bodies, competent to excite criminal prosecution [229 [230].

The resulted differences are applicable and for differentiation of a false denunciation and slander concerning the judge, the juryman, the public prosecutor, the inspector, the person making inquiry, the bailiff. The crime provided by item 2981 UK the Russian Federation, differs from the general structure of slander on object, a circle of persons recognised as victims, and also is characterised by presence of communication with office activity of the last in justice sphere.

It is not less important to distinguish item 306 UK the Russian Federation from the false message on the terrorism certificate, responsibility for which fulfilment is provided item 207 UK the Russian Federation. Difference of the last consists that it encroaches on other object - the public safety; its maintenance are data not about any crime, as at a false denunciation, and about preparing explosion, an arson or other actions creating danger of  destruction of people, causing of a considerable property damage or approach of other socially dangerous consequences; as the addressee act not only law enforcement bodies and other public authorities, but also citizens; motives and the purposes of the person, false the terrorism which has informed on the certificate, consist in desire to inform the corresponding false information from hooligan promptings, for the purpose of "check" of work of law enforcement bodies, for derivation of attention from really preparing certificate of terrorism or other crimes, etc.

V.S.Komissarov allocated one more difference connected with the purpose of the guilty person. Recognising that an obligatory sign of the subjective party of act of terrorism, responsibility for which is provided item 205 UK the Russian Federation, is the special purpose - destabilization of activity of authorities either the international organisations or influence on acceptance of decisions by them (in operating edition - a comment of the author), it should be reflected at the committing a crime, provided by item 207 UK the Russian Federation. If in the untrue report other purposes signs of the false message on the terrorism certificate are absent are specified, and actions of the guilty person under certain circumstances can be qualified as false донос1. It is necessary to notice also, that in the event that false data concern the perfect certificate of terrorism the criminal liability should come under item 306 UK the Russian Federation.

We believe, the false message on the terrorism certificate is one of kinds of a false denunciation that testifies to competition presence criminally-rules of law as in item 306 UK the Russian Federation contains the general provision, in item 207 UK the Russian Federation - special. Being guided by a rule established ch. 3 items 17 UK the Russian Federation, it is possible to make a substantiated conclusion that the cumulative offences in this case are absent, and the criminal liability comes under the special provision. Thus it is necessary to take into consideration absolutely true reservation made A.S.Gorelikom, that positions ch. 3 items 17 UK the Russian Federation reflect only one of the interaction parties between the general and special norms. The special provision is applied, if in sodejannom all its signs are seen, and in case of absence any of them the general provision comes under to application provided that there are besides all its signs [231 [232].

The question on qualification of actions of the official who has made a false denunciation with use of the official position is ambiguously solved. So, one authors affirms, that in the presence of all necessary signs of abusing official powers responsibility should come under item 285 UK the Russian Federation, and for the persons who are carrying out administrative functions in commercial or other organisation, accordingly, under item 201 UK РФ1. Other authors recognise that such act it is necessary to qualify or only under item 285 UK the Russian Federation, or on set from item 306 UK the Russian Federation, considering a parity of sanctions of the named norms [233 [234]. Besides, there is an opinion what to qualify actions of the guilty person in any case it is necessary on set of mentioned articles UK the Russian Federation [235].

Judiciary practice on the given question also does not differ uniformity. So, in cassation definition from 31.01.2012 on business № 48-011-122 Full court on criminal cases of the Supreme Court of the Russian Federation has specified, that actions ZH, V, A and SH, condemned for the organisation and a management of fulfilment of the false denunciation connected to charge of the person in fulfilment especially of grave crime, with artificial creation of proofs of charge, and also for use by the official of the office powers contrary to interests of the service, made of other partiality and the entailed material breach of the rights and legitimate interests of the citizens protected by the law of interests of a society and the state and heavy consequences, are incorrectly qualified on ch. 3 items 33, ch. 3 items 306 and ch. 3 items 285 UK the Russian Federation as it agree with ch. 3 items 17 UK the Russian Federation responsibility should come under the special provision which in this case is ch. 3 items 285 UK the Russian Federation, and the general provision - ch. 3 items 33, ch. 3 items 306 UK the Russian Federation come under to an exception of a sentence as unduly made by court [236].

The Nikulinsky regional court of of Moscow which in a sentence concerning S qualified from 12.03.2013 its actions under the cumulative offences, provided ch adheres to other position. 1 items 285, ch. 3 items 306 and ch. 1 items 228 UK the Russian Federation [237].

In our opinion, qualification should depend on concrete circumstances of an event. So, if the false denunciation extends in connection with realisation of office activity actions of the guilty person should be qualified on set of item 306 and 285 or 201 UK the Russian Federation accordingly. In this case there is an encroachment at least on two objects - interests of justice, on the one hand; interests of public service or service in commercial or other organisation - with another. If the denunciation is not connected in any way with office activity qualification under cumulative offences is excluded, and actions lzhedonoschika items 306 UK the Russian Federation are covered only.

The parity of a considered crime and falsification of proofs on criminal case sees rather interesting, responsibility for which is established ch. 2 items 303 UK the Russian Federation. The false denunciation connected to artificial creation of proofs of charge, as a matter of fact, from the objective party is falsification of proofs. However from a disposition ch. 2 items 303 UK the Russian Federation follow, that special subjects of this act the person making inquiry, the inspector, the public prosecutor or the defender, while the perpetrator, provided by item 306 UK the Russian Federation, - the general, that is any made physical person who has reached of age of the criminal liability admit only.

One more difference is connected with the purposes of the persons making analyzed encroachments. Frequently the false denunciation is made to convict the person who actually did not commit any crime, and falsification of proofs can pursue both similar, and other purpose - to justify or soften a fate guilty, to revenge someone, etc. Meanwhile qualification on set of the acts provided ch. 2 items 303 and item 306 UK the Russian Federation, are represented not quite pertinent and proved.

It is necessary to distinguish also a false denunciation and provocation of a bribe or commercial payoff. Under certain conditions named acts can be similar enough. So, in case of the committing a crime provided ch. 3 items 306 UK the Russian Federation (connected to artificial creation of proofs of charge), can be identical the purposes of the persons who have made the given encroachment and provocation of a bribe or commercial payoff, - "exposure" of the innocent person in committing a crime. In this connection, as truly marked A.S.Gorelik, «provocation can look as a way of the false denunciation» 1.

At the same time in a situation when the purpose of provocation of a bribe or commercial payoff is only blackmail without intention of the guilty person to inform of law enforcement bodies and other authorities the information on ostensibly received bribe or a payoff subject, this crime will not coincide with a false denunciation. In the event that transfer of a bribe or a payoff subject has taken place, data on it for the clear reasons will not be false. Thereupon we will agree with I.V.Dvorjanskovym believing, that «the objective party of the crime provided by item 304 UK the Russian Federation, consists... Not in the untrue report

0 committing a crime, and in creation of visibility of the last »[238 [239].

Attempt to analyse variants of a parity of provocation of a bribe or commercial payoff, on the one hand, and a false denunciation, - with another, was undertaken by N.A.Egorov. First, in its opinion, in case of validity of intention on the committing a crime, provided by item 306 UK the Russian Federation, but at default of the objective party on circumstances not dependent on the person, sodejannoe is qualified on set of item 304 and ch. 1 items 30, item 306 UK the Russian Federation.

Secondly, at fulfilment of both crimes by the same person and their finishing up to the end the criminal liability comes exclusively under item 306 UK the Russian Federation.

Thirdly, at fulfilment of considered acts by different persons on preliminary arrangement the subject who has made provocation of a bribe or commercial payoff, comes under to responsibility on item 304 and item 33, item 306 UK the Russian Federation; the second person - is exclusive under item 306 UK the Russian Federation.

Fourthly, provided that the accomplice represented itself as the organizer, the instigator or the helper, however was not the executor of provocation of a bribe or commercial payoff, its actions are qualified on item 33, item 304 and item 306 UK РФ1.

The stated shows, that qualification of a false denunciation and provocation of a bribe or commercial payoff on set is prevailing. Distinctions in variants of such qualification are caused by a role of persons committing named crime which admit either executors, or other accomplices. Provocation of a bribe or commercial payoff which is made by one person (without partnership) and is finished, having terminated in a false denunciation, item 306 UK the Russian Federation is in full covered and additional qualification does not demand.

N.A.Egorovoj's position concerning last position is called in question A.S.Gorelikom [240 [241] with whom it is difficult to disagree. Really, at fulfilment of the crimes provided by item 304 and 306 UK Russian Federation, the person carries out two actions, instead of one. In this connection it is not clear, for what reason in a case when the false denunciation does not become on circumstances which do not depend on the guilty person, its actions, besides preparation for a denunciation, the Russian Federations are qualified also under item 304 UK, and in case of the ended denunciation - are not present. It is represented, that provocation of a bribe or commercial payoff after which the false denunciation is made, it is necessary to qualify on set of the listed acts. Cases when the bribe or a payoff subject are accepted will be an exception from this and about the speech false denunciation cannot go, and also if provocation was accompanied by the purpose of blackmail without intention of the guilty person to inform corresponding data in law enforcement bodies. Sodejannoe under such circumstances it is necessary to qualify only under item 304 UK the Russian Federation.

Considerable practical and theoretical interest represents differentiation of a false denunciation and false witness. Encroaching on the same specific and direct objects, these acts have essential differences, that, first of all, concerns the objective party. If at a false denunciation data on the committing a crime, mismatching the validity, are informed at false witness - much more various information. The encroachment provided by item 306 UK the Russian Federation, is made in the form of active action of the guilty person while false indications can be given by inactivity in case of default about any essential circumstances of business.

Frequently the false denunciation is made before criminal case excitation in what it quite often and results; false indications are given, when business already is in manufacture. In case of fulfilment of a denunciation during manufacture on business it is qualified under item 306 UK the Russian Federation if the applicant - lzhedonoschik has addressed in law enforcement bodies under own initiative. In the event that false data are informed during investigatory actions, for participation in which the person is caused in the order established by the remedial legislation, and in the indications does not specify in the concrete person (persons), its actions will form false witness structure. However at the message the person who has initiatively was in law enforcement bodies, justificatory data of structure of a false denunciation will not be, and it is necessary to consider actions of such person as false indications.

Addressees informed are various also at a false denunciation and false witness of data [242]. In the first case it is law enforcement bodies and other public authorities, in the second - the officials spending corresponding investigatory actions, court.

From the subjective party the false denunciation, as a rule, is aimed at acceptance by law enforcement bodies of the decision on criminal case excitation, frequently concerning the innocent person with all negative consequences following from here. False witness can be made not only for condemnation of the specified person, but also with a view of clearing of the guilty person of responsibility or, for example, softening of its fate. Hence, the false denunciation by the nature has accusatory character, and false witness - both accusatory, and justificatory.

Subjects of compared crimes are various also. So, the perpetrator, provided by item 306 UK the Russian Federation, is the general is the responsible person who has reached of 16-year-old age. The subject of false witness is among special as the encroachment can be made an exhaustive circle of persons which have the remedial status of the witness who has sustained during legal proceedings, expert, the expert or the translator.

The question on cumulative offences presence is problem at fulfilment by the person of a false denunciation and the subsequent summer residence it of false indications for denunciation acknowledgement. On the one hand, such indications will be, as a matter of fact, continuation of a false denunciation and, accordingly, will not form structure of an independent crime. On the other hand, the person who has made the act provided by item 306 UK the Russian Federation, and has then given false evidences, does not come under to responsibility for false witness as the Russian Federation is not its subject owing to positions of item 51 of the Constitution of the Russian Federation and item 307 UK, differently such person would turn to "witness" on the business.

So, incorrect the position of Reutovsky city court of the Moscow area which in a sentence qualified from 27.05.2011 action B which at first has made a false denunciation on which basis of the Department of Internal Affairs on of an island Balashikha the Moscow area criminal case on ch has been initiated is represented. 1 items 112 UK the Russian Federation, and subsequently confirmed it in the indications given during preliminary investigation, under the cumulative offences, provided ch. 1 items 306, ch. 1 items 307 UK the Russian Federation. We will notice, that by results of investigation criminal case has been ceased on the basis provided by item 2 ch. 1 items 24 UPK the Russian Federation, that is in the absence of structure преступления1.

Similar qualification of actions of the defendant is given by Himkinsky city court of the Moscow area in a sentence from 01.06.2011 concerning M [243 [244].

In our opinion, it is not necessary to consider the mentioned false testimonies as an independent crime. It is thought, the rights there was SH.S.Rashkovsky approving, that «... The false indication in these cases concerns the same facts, as a false denunciation, and is logic continuation of the same actions» [245]. M.H.Habibullin writing, that «adheres to this position also. Many crimes at a completed crime stage can proceed long enough time.

. The structure of a false denunciation concerns the same crimes. The actions forming structure of the ended false denunciation, can practically proceed until manufacture on the business initiated under the false denunciation if the informer at interrogations continues to insist on the false data containing in the statement »1 is led.

Let's agree with its opinion that the revealed feature of a considered crime is necessary for considering as not to accept a uniform crime for plurality of acts and to avoid errors in qualification of actions of the guilty person under cumulative offences, and for calculation of limitation periods of bringing to criminal liability. Corresponding terms are estimated not since time of the termination of a crime, for example, from the moment of the reference in competent bodies with the false message

0 crime, and from the moment of fulfilment of finishing action at a stage of the ended encroachment which example the moment of a summer residence of last false testimonies confirming a false denunciation can be, at a legal investigation in court [246 [247].

The conclusions drawn by us prove to be true also judiciary practice of the Moscow provincial court. So, the Full court on criminal cases of the Moscow provincial court in cassation definition on business A has noticed, that it is unreasonably condemned on ch. 2 items 307 UK the Russian Federation for a summer residence of false indications of the victim. By court it is established, that A in the indications has stated the same data, as in false denunciation earlier made by it on which basis criminal case has been initiated. Under such circumstances a presentation to the person of the requirement interrogated as the victim to give truthful evidences would mean putting on on it under the threat of criminal prosecution under item 307 UK the Russian Federation duties to expose itself in committing a crime - a false denunciation that the Russian Federation contradicts item 51 of the Constitution of the Russian Federation and item 42 UPK. In this connection a sentence in the relation And.

It is excellent regarding condemnation under item 307 UK the Russian Federation, and criminal case in a corresponding part is ceased on the basis provided by item 2 ch. 1 items 24 UPK the Russian Federation, that is in the absence of structure преступления1.

Let's result in a substantiation of the position one more example. The Moscow provincial court in the appeal decision on business L has specified, that its condemnation on ch. The Russian Federation for a summer residence of false indications as the victim on preliminary investigation it is impossible to recognise 1 item 307 UK proved. From sense of item 306 UK the Russian Federation follows, that the subsequent message the person who has addressed with a false denunciation, falsehoods about a perfect crime during interrogations on preliminary investigation and in court the Russian Federation does not demand additional qualification under item 307 UK. L in the indications has stated the same data, as in false denunciation earlier made by it on which basis criminal case is initiated. Under such circumstances the court of appeal instance has come to conclusion, that all actions L fall under signs of the crime provided ch. 1 items 306 UK the Russian Federation, in this connection a sentence regarding its condemnation on ch. 1 items 307 UK the Russian Federation comes under to cancellation, and criminal case in a corresponding part - to the termination behind absence in actions L of the corpus delicti [248 [249].

Thus, otgranichenie a false denunciation from adjacent structures of crimes it is necessary to spend on the basis of the detailed analysis of structure of a considered crime and its separate elements. It will allow to avoid errors in pravoprimenenii at qualification of a considered crime and to reveal lacks of a legislative regulation of item 306 UK the Russian Federation about which it will be told further.

The most typical situations is otgranichenie a false denunciation from slander (item 1281 and 2981 UK the Russian Federation), the false message on the terrorism certificate (item 207 UK the Russian Federation), falsifications of proofs on criminal case (ch. 2 and 3 items 303 UK the Russian Federation), provocations of a bribe or commercial payoff (item 304 UK the Russian Federation) and false witnesses (item 307 UK the Russian Federation).

As the basic criteria otgranichenija a false denunciation from adjacent structures of crimes signs of object of a crime, the objective party (first of all, acts), the subjective party (first of all, aims of crime) and the perpetrator act.

It is necessary to notice, that problems of qualification of the crime provided by item 306 UK the Russian Federation, are not limited to questions of its differentiation with adjacent encroachments. Not less interesting the aspects of qualification connected with plurality of considered criminal actions and other problems which have not received due attention in the special literature are represented.

So, external signs of plurality of crimes can be seen in a situation when the person directs a false denunciation to different addressees. In the event that such denunciation concerns the same circumstances (without dependence from, whether are the maintenance of a denunciation of data on ostensibly taking place crime without instructions on made his face or with instructions on that), and the guilty person pursues the uniform aim - to bring the false information informed it to the notice criminal prosecution body, sodejannoe is qualified as an individual crime. This conclusion follows from this, that act encroaches on one object though it is made by a numerous direction of a false denunciation to various addressees, is characterised by one form of fault - the express intent, pursues one aim - as a rule, to induce criminal prosecution body to criminal case excitation. Besides, the negative consequence of consideration of the similar references containing such false denunciation, will be uniform - criminal case excitation.

The numerous message of the false data not connected among themselves on committing a crime (as a miscellaneous, and to one addressee) forms, accordingly, set of criminal actions as similar denunciations, encroaching on the same object - the interests of justice connected with formation of mathematical evidences, at the same time concern different circumstances and can lead to various consequences on the character.

The situation at which the guilty person can inform false data on fulfilment of several crimes in one reference is not excluded. In our opinion, if such information extends concerning one person or a group of persons (the false denunciation about fulfilment of crimes individually or in partnership means) sodejannoe forms an individual crime as the intention of the guilty is uniform and directed on initiation of criminal prosecution of victims - obviously innocent persons for it. Quantity of the criminal cases initiated on the basis of such denunciation and the persons involved in the criminal liability in this case again as, finally, the Russian Federations initiated on different articles UK criminal cases will be connected in one manufacture by rules of item 153 UPK the Russian Federation.

The message in one statement for several ostensibly perfect criminal actions as those, without instructions on the concrete person (persons), is qualified as cumulative offences as it is not characterised by the unity described above and interrelation of socially dangerous act and criminal consequences.

Similarly it is necessary to qualify actions of the person consistently making a false denunciation on the same circumstances concerning different victims. In this case harm is caused not only to the basic direct object, but also facultative - to the rights and legitimate interests of each of victims, the maintenance of the subjective party is various.

Concerning partnership in a considered crime we will note: taking into account that the subject of a false denunciation is the general, partnership is theoretically possible in any kinds and forms [250]. At the same time in practice it is realised by means of instigation more often.

Summing up the above-stated, we will underline, that pledge of correct qualification of the crime provided by item 306 UK the Russian Federation, at the first stage, in our opinion, is its faultless otgranichenie from adjacent criminal actions, on the second - the analysis of elements of the corpus delicti for the purpose of qualification of act by corresponding part of item 306 UK the Russian Federation.

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A source: Tsepelev Konstantin Valerevich. FALSE DENUNCIATION And the FALSE INDICATION, the EXPERT'S STATEMENT, the EXPERT OR WRONG TRANSFER: CRIMINALLY - the LEGAL CHARACTERISTIC And QUALIFICATION PROBLEMS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2018 . 2018

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