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§2. Qualification and otgranichenie false witnesses from adjacent crimes

Differentiation of the act provided by item 307 UK the Russian Federation, with adjacent crimes also causes many questions both in the criminal law doctrine, and in sphere pravoprimenenija. Because in the previous paragraph problems otgranichenija a false denunciation from false witness are analysed, in the present paragraph they will repeatedly not be considered.

As well as in a case with the false denunciation, certain difficulties can cause otgranichenie false witnesses from slander. It is connected by that both crimes are capable to lead to infringement of the rights and legitimate interests of the person. At the same time at them objects of an encroachment are various: at false witness - interests of justice, at slander - honour and advantage of other person.

With reference to M.H.Habibullin's case in point considers, that interests of the person at a summer residence of the false indication «can be broken only in that case when it is given not in advantage, and against convicted» [251]. Partly agreeing with it, we will notice, that interests of the person can suffer also and from the false indications containing slander concerning the victim or the witness and having purpose discredit of specified persons before bodies of preliminary investigation or court which are misled by similar actions. In this case the slander will be included into the objective party of false witness and additional qualification under item 12 81 UK the Russian Federation will not demand.

It is necessary to consider and the features inherent in the objective party of analyzed structures of crimes. So, false indications are given when due hereunder to bodies of preliminary investigation or court and can not have any relation to honour and advantage of other person. Slanderous fabrications dishonour honour and advantage of other person and can extend among any persons, including by means of mass media. Besides it, for slander active actions are characteristic, and the false indication can be made by inactivity (default about those or other facts and circumstances).

neodinakovy and subjects of the crimes provided by item 307 and 1281 UK Russian Federation. If the subject of slander - the general, that is the made physical person who has reached of age of 16 years the subject of false witness is special, with reference to compared structures of crimes - the witness or the victim, that is the person allocated with the certain remedial status.

Interesting the parity of considered act and non-disclosure about a crime is represented, responsibility for which is established item 2056 UK the Russian Federation. Both in that, and in other case (with a condition, that at a summer residence of false indications the interrogated person holds back any significant facts or circumstances) law enforcement bodies or court do not receive the necessary information. Besides, from the subjective party both crimes are made deliberately, they can have similar motives and the purposes.

Nevertheless, false witness and non-disclosure about a crime have enough differences, allowing to make their differentiation. First of all, objects of investigated acts are various: false witness encroaches on normal activity of law enforcement bodies and court, interests of justice, and non-disclosure about a crime - on the public safety.

Difference of the objective party of considered crimes consists that false witness in the form of default is made at a stage of preliminary investigation or in court and concerns circumstances and the facts important for adjudication. Non-disclosure about a crime as the Russian Federation follows from the name and the maintenance of item 2056 UK, represents default of a lawful duty to inform the authorities, authorised to consider the message on a crime, on the person (persons) which under authentically known data prepares, makes or has committed a crime. Reliability assumes conviction of the person in conformity of the validity of data available for it.

Features of a disposition of item 2056 UK the Russian Federation cause one more difference of this crime from false witness: non-disclosure about preparation or fulfilment at least one of the crimes provided by item 205, 2051, 2052, 2053, 2054, 2055, 206, 208, 211, 220, 221, 277, 278, 279, 360 and 361 UK the Russian Federation is penal. False indications are not limited to any structures of crimes and can be given not only within the limits of criminal case (except for indications of the victim which can be received only at criminal trial realisation). Besides it, false witness is made at a stage of preliminary investigation or in court, and non-disclosure about a crime precedes both to that, and another.

Subjects of analyzed structures of crimes are various also. The subject of the act provided by item 2056 UK the Russian Federation, any made physical person who has reached of age of the criminal liability (14 years) can be. As the subject of false witness the persons possessing the remedial status of the witness or sustained (other remedial statuses at comparison of the mentioned encroachments to result it is represented inexpedient) by whom they are allocated when due hereunder act.

In case of non-disclosure about a crime and fulfilment subsequently false witnesses of action of the guilty person as it is thought, it is necessary to qualify as an individual crime, instead of on set as non-disclosure about a crime is continuing crime during which time the person can give false evidences.

Such indications will be continuation of structure of non-disclosure about a crime and independent qualification do not come under. Besides, the guilty person resorts to false testimonies on purpose to avoid exposure from what the conclusion follows, that false witness in this case is a self-defence which cannot be penal. Other treatment will lead to infringement of item 51 of the Constitution of the Russian Federation.

With false witness it is possible to carry to number of adjacent crimes also falsification of proofs, the criminal liability for which fulfilment is fixed in item 303 UK the Russian Federation. Settling down in one chapter of the criminal law, the named acts encroach on the same object - interests of justice, have the similar maintenance and lead, as a matter of fact, to one result - to granting in the order of bodies of preliminary investigation or court of false proofs. Under certain circumstances false witness can be carried to one of kinds of falsification of proofs.

At the same time between considered encroachments there are also distinctions. So, in spite of the fact that the subject of both crimes is special are the persons allocated with the certain status, their subject structure is various. If at false witness fulfilment to number of subjects the witness who has sustained, the expert, the expert or the translator, concern at falsification of proofs - the person participating in business, or its representative; the person making inquiry, the inspector, the public prosecutor or the defender; the person authorised on carrying out operativnorazysknyh of actions.

In the paragraph devoted to the criminally-legal characteristic of false witness, it was specified, that the named encroachment can be made as in the form of action, as well as by inactivity. First of all, in the latter case this act has the general lines with refusal of the witness or the victim of evidence, responsibility for which is established item 308 UK the Russian Federation. So, the direct object of both crimes - normal activity of bodies of preliminary investigation and court coincides; the circle of persons which can be carried to number of subjects (the witness and the victim) partly coincides; from the subjective party of act are made with the express intent.

The encroachments provided by item 307 and 308 UK Russian Federation, basically are delimited to signs of the objective party. At false witness it is characterised by the message of a false information on circumstances which come under to proving (establishment) and represent essential value for business, or default about such circumstances. Refusal of evidence is in most cases expressed in full and obvious unwillingness to give evidence on business.

Frequently witnesses and victims by criminal case consideration in court refuse the indications given by them at a stage of preliminary investigation. However, as it is represented, such actions are incorrect for considering as refusal of evidence as the mentioned persons, as a rule, give other evidences so, speech should go about the false witness made either during investigation in court, or during a judicial legal investigation. In the event that the witness or the victim will refuse earlier given indications and not begin to give them and in court, acts of guilty persons will form the corpus delicti, provided by item 308 UK the Russian Federation. Thus the witness or the victim can either completely, or partially not to answer questions set by it, to refuse to speak

Those 0 or other circumstances of an event.

Investigating problems of differentiation of false witness and refusal of evidence, M.H.Habibullin as it is thought, fairly criticised I.S.Vlasova and I.M.Tjazhkovu, believing, that «refusal will be and when the witness, being is caused in judicial-investigatory bodies and not wishing to give evidence, declares, that he knows nothing» [252]. However in that case the witness or the victim possess the significant information, but do not refuse to give evidence, and mislead the corresponding official, informing false data that know nothing. Similar actions of guilty persons testify to a summer residence of false indications, instead of about refusal of them. If interrogated really does not possess interesting law enforcement bodies and court the information, speech about the criminal liability in general cannot be [253].

Important it is represented otgranichenie instigations to false witness from payoff or enforcement to testify or to evasion from evidence or to wrong transfer (item 309 UK the Russian Federation). We will notice, that agree ch. 4 items 33 UK the Russian Federation instigation consist in declination of other person to committing a crime by an arrangement, payoff, threat or in another way.

The subject of instigation to false witness is the general is the made physical person who has reached of age of 16 years. In spite of the fact that suspected or convicted are not subjects of false indications on the business as such indications serve as a protection frame from charge, they, in our opinion, should come under to responsibility in case of fulfilment of instigation of other person to a summer residence of false indications.

The perpetrator, provided by item 309 UK the Russian Federation, too is the general. The object and the subjective party at considered acts can coincide. In such situation the objective party becomes criterion of differentiation of instigation to false witness and payoff or enforcement to testify or to evasion from evidence or to wrong transfer. In the first case, at the false witness, the used means, whatever they were (belief, the request etc.) Are not accompanied by violence over the witness who has sustained, the expert, the expert or the translator. In the second case to a course there is a payoff, compulsion of the witness who has sustained to a summer residence of false testimonies, the expert, the expert to a summer residence of the false conclusion or the translator to realisation of wrong transfer, and compulsion of the specified persons to evasion from the evidence, connected to blackmail, threat by murder, injury is equal to health, destruction or damage of property of these persons or their relatives. Besides, the crime provided by item 309 UK the Russian Federation, can be made with application of the violence not dangerous or dangerous to life or health of specified persons.

In a case when false indications are given on purpose vygorazhivanija the persons who have really committed a crime, the false witness structure to the signs can coincide with concealment of crimes, responsibility for which is provided item 316 UK the Russian Federation. At the same time the false witness essence as crimes does not vary from the maintenance and character of false testimonies which can be both accusatory, and justificatory. In both cases the encroachment on interests of justice is carried out, and under certain circumstances - on interests of the person of the victim from an encroachment. Thus the person, giving evidence screening the criminal, does not promise to hide the criminal, means or the instrument of crime, traces of a crime or the subjects extracted criminal by.

Thereupon interesting A.N.Trajnina's considering position is represented, that «when a false testimony puts the problem to achieve the justification guilty, it is one of means to cover the criminal from justice» [254]. As a result it comes, as is thought, to true, kept an urgency and today to a conclusion that actions of the guilty person in such situation should be qualified as false indications.

False witness if the person has promised in advance is in another way qualified to give the evidences justifying the guilty. In this case there are the combined efforts of several persons aimed at achievement of certain criminal result, and false witness has a direct causal relationship with other crime. It allows the executor «to hope for impunity counting on an alibi or artificial creation of others of" proofs »which in advance guarantees to present the future witness-helper» 1. Such actions testify to partnership in a kind of complicity and the Russian Federations (according to the crime made by accomplices) referring to item 33 of General part UK the Russian Federation should be qualified under corresponding article of Special part UK.

Thus, the most typical situations is otgranichenie false witnesses from slander (item 1281 UK the Russian Federation),

Non-disclosures about a crime (item 2056 UK the Russian Federation), falsifications of proofs on criminal case (ch. 2 and 3 items 303 UK the Russian Federation), a false denunciation (item 306 UK the Russian Federation) [255 [256] [257], refusal of the witness or the victim of evidence (item 308 UK the Russian Federation), payoff or enforcement to testify or to evasion from evidence or to wrong transfer (item 309 UK the Russian Federation) and concealment of crimes (item 316 UK the Russian Federation).

The basic criteria otgranichenija false witnesses from adjacent structures of crimes are signs of object of a crime, the objective party (first of all, acts), the perpetrator and, to a lesser degree, the subjective party.

The considered questions of a problem of qualification of the crime provided by item 307 UK the Russian Federation, are not settled. Frequently the person gives evidence some times, especially during the criminal trial (at least two - at a stage of preliminary investigation and in court). Besides, the witness and the victim can repeatedly be interrogated both one, and different inspectors (investigators). In all these cases of action of the guilty person do not form set, as each subsequent indications, let and added or changed (excluding, certainly, the authentic indications given instead of false), are acknowledgement previous, including initial, and the perjurer pursues the same aim by which it is guided at committing a crime [258].

Numerous false indications of the expert or the expert, and also wrong transfer are similarly qualified. Thus, as already it has been told earlier, it is impossible to recognise indications of the expert false if they, being those under the maintenance, have been received to a summer residence by the expert of the conclusion on business.

The stated concerns cases when the named subjects of false witness give evidence, the conclusions etc. on the same circumstances. If false witness concerns the different facts not connected among themselves, speech about an individual crime cannot be, as plurality of criminal actions in the form of cumulative offences will take place in that case.

Qualification on set should adhere and in a case when in false indications of the interrogated person the false denunciation about committing a crime without dependence from presence in it of instructions on the concrete person contains. In such situation the guilty pursues the independent aim from false witness which is connected with possible excitation of criminal case on the basis of the false denunciation and all negative consequences following from it. Thus, considering, that false witness is made listed in ch. 1 items 307 UK the Russian Federation special subjects which number does not concern convicted, actions of the last can be qualified only under item 306 UK the Russian Federation and only in the event that in its false indications false data on committing a crime by obviously innocent person will be resulted.

The considered crime can be made in partnership [259]. However thus it is necessary to consider positions ch. 4 items 34 UK the Russian Federation according to which the person who is not the perpetrator specially specified in corresponding article of Special part UK the Russian Federation, but participated in the committing a crime, provided by given article, come under to the criminal liability for this crime as the organizer, the instigator or the helper.

Partnership in false witness, as a rule, is realised in the form of instigation, considering specificity of the subject of the named crime, and the Russian Federation referring to item 33 UK the Russian Federation, if the instigator - the private person is qualified under item 307 UK. If the instigator is the official its actions are qualified under the cumulative offences, provided items 307 (referring to item 33) and 285 UK the Russian Federation. At an orientation of intention of the official on falsification of proofs of its action will form the corpus delicti, provided by a corresponding part of item 303 UK the Russian Federation.

As well as in a case with a false denunciation, for correct qualification of acts of guilty persons it is necessary to investigate and reveal carefully features of structure of false witness, considering, first of all, all its differences from adjacent structures of crimes. Research of questions otgranichenija the last from a crime provided by item 307 UK the Russian Federation, and other aspects of qualification of criminal actions allows to develop the measures directed on perfection of the analyzed criminally-legal interdiction. The final paragraph of the present chapter is devoted the given questions.

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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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