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§ 1. Qualification of the crime provided by item 258.1 UK the Russian Federation, and otgranichenie from adjacent crimes and offences

Qualification of crimes is the important stage of a criminally-legal estimation of perfect socially dangerous act. As specifies N.G.KadniYokov, «accurate and exact qualification of a crime means, that is established polyonoe conformity of perfect socially dangerous act to the elements essential to the offence provided by Special part UK..., such qualification is a legal ground for occurrence and realisation criminal otvetyostvennosti, matters for application of norms criminal procedure zayokona, and after an establishment of guilt of the person - and for application of norms ugolovnoyoispolnitelnogo the rights» [349].

Qualification of ecological crimes is connected with numerous problems. First, it is necessary to consider a considerable quantity of others noryomativnyh legal acts owing to special blanketnosti dispositions ugolovnoyopravovyh the norms providing responsibility for these crimes. In - the second, ecological crimes border on crimes against sobyostvennosti, and also with the acts causing a damage of a life and health cheloyoveka. Thirdly, crimes of the given category very closely border with analoyogichnymi administrative violations. The given problems demand special accuracy at an estimation of socially dangerous act in ecological sfeyore, the account of all objective and subjective factors.

Results of expert interrogation testify, that quite often difficulties by consideration of criminal cases on ecological crimes in court svjazayony with problems of differentiation of adjacent acts. According to respondents, most sharply such problems arise in the first years after criminalisation of the act which earlier were not a crime. This results from the fact that at the given stage there are no high-grade generalisations of judiciary practice on affairs of the given category.

WITH. 6.

The above-stated to the full concerns item 258.1 UK the Russian Federation as criminally-rule of law given article still very "crude", thus, as sprayovedlivo scientists mark, there is their inconsistency with norms of others stayotej UK the Russian Federation [350]. The analysis of the criminal legislation, judiciary practice shows, that adjacent in relation to an investigated crime (item 258.1 UK the Russian Federations) are the ecological crimes provided by the item of item 256, 258, 259 UK the Russian Federation, and also the crimes against property the objects of fauna brought in the Red book Russian FederaYOtsii can be which subject also.

Rather-legal analysis of the item of item 256, 258 UK the Russian Federation testifies, that the structures of crimes provided in them have the big similarity with obekyotivnymi and the subjective elements essential to the offence, provided by item 258.1 UK the Russian Federation, regarding illegal extraction of the wild animals brought in the Red book of the Russian Federation and (or) protected international doyogovorami. As a matter of fact, the crime provided by item 258.1 UK the Russian Federation, represents a version of penal poaching. It follows from the logiyoko-legal analysis of the maintenance of dispositions of the item of item 256, 258 UK the Russian Federation, in which responsibility for extraction (hunting, vylov) the animals brought in the Red book of the Russian Federation and (or) protected international doyogovorami is provided. Item 13.2 of the decision of Plenum of the Supreme Court of the Russian Federation testifies To it from 18.10.2012 № 21 in which it is specified, that under the item «, for example, In »ch.

1 item 258 UK the Russian Federation it is necessary to qualify illegal hunting in otyo
Carrying of such animals and birds which are brought in the Red book of the Russian Federation or the Red book of the subject of the Russian Federation and (or) ohranjayojutsja by international treaties of the Russian Federation [351].

The similar position is stated in and. 4 decisions of Plenum Supreme SuYOda the Russian Federation from 23.11.2010 № 26 where the explanation is given, that to krupyonomu to a damage caused as a result of committing a crime, predusmotyorennogo the Russian Federation, it is necessary to carry item 256 UK vylov or destruction water bioreyosursov, brought in the Red book of the Russian Federation or the Red book of the subject of the Russian Federation and (or) protected international dogovorayomi the Russian Federation [352]. Here it is important to notice, that in the given edition this point of the decision was applied in judiciary practice before modification of item 256 UK the Russian Federation in July, 2016 [353]

Concerning a competition of the specified norms repeatedly expressed uchyoyonye in works on ecological crimes. For example, A.M.Maxim otmeyochaet, that with inclusion in UK the Russian Federation special article 258.1 has been provoked a competition between the norms provided, on the one hand, in item 258.1 UK the Russian Federation, with another - in the item "in" ch. 1 items 258 UK the Russian Federation. In the first and in the second cases it is a question of acts concerning the wild animals brought in Red book mezhyo
dunarodnogo the union of wildlife management and natural resources and in the Red book of the Russian Federation. At decision-making on criminal case excitation there are complexities, under what article UK the Russian Federation is necessary for qualifying soyodejannoe, on and. "In" ch. 1 items 258 UK the Russian Federation or under item 258.1 UK the Russian Federation. According to A.M.Maksimova, the given competition criminally-rules of law has no lawful decision, therefore they are offered to exclude and. "In" ch. 1 from item 258 UK the Russian Federation [354].

Before introduction in action of item 258.1 UK the Russian Federation the criminal liability for proyotivopravnuju extraction of the wild animals brought in the Red book of the Russian Federation and (or) protected by international treaties, including especially valuable kinds, came under item 256 item, 258 UK the Russian Federation [355]. Thus, it is obvious, that formally illegal extraction of especially valuable wild animals comes within the purview not of one, and several articles UK the Russian Federation.

In N.G.Kadnikova's proved opinion, such situation is characterised by a competition criminally-rules of law as as a result by rules kvalifiyokatsii application is come under only by one norm [356]. Complexity in practical dejayotelnosti bodies of preliminary investigation and court on qualification obyoshchestvenno dangerous acts consists, according to L.V.Inogamovoj-Hegaj, that a competition of norms - the phenomenon inevitable in which basis lay obekyotivnye and the subjective reasons, including: imperfection of the legislation, standard redundancy, absence of accurately proved criminal policy of the state, inclusion in UK the Russian Federation new articles without due legal examination in the course of their working out and acceptance [357].

WITH. 44.

At similarity of objective and subjective signs of structures prestupleyony, the provided items of item 256, 258 and 258.1 UK the Russian Federation, in a basis of their differentiation the special sign of a subject of a crime, predusmotyorennogo item 258.1 UK the Russian Federation should be put. Thus it is necessary to be guided ch. 3 items 17 UK the Russian Federation where it is fixed, that if a crime are provided by the general and special noryomami the criminal liability comes under the special provision [358].

In item 256 item, 258 UK the Russian Federations contain general provisions whereas norms, preduyosmotrennye in item 258.1 UK the Russian Federations, are special as in them ugolovyonaja responsibility it is established for illegal extraction not any kind redyokih the animals brought in the Red book of the Russian Federation and (or) ohrayonjaemyh by international treaties but only especially valuable kinds wild zhiyovotnyh which list is approved by the Governmental order of the Russian Federation from 31.10.2013 № 978 [359]. Thereupon not quite proved predstavyoljaetsja A.M.Maksimova's opinion, that the norms provided in the item « In »ch. 1 items 258 and in item 258.1 UK the Russian Federation, do not correspond among themselves as the general and special on otyonosheniju to each other [360]. If as a subject of illegal extraction the valuable wild animals included in the list, approved postanovleyoniem the Governments of the Russian Federation № 978 act sleyoduet to qualify under item 258.1 UK the Russian Federation act from 31.10.2013 osoyobo. In all other cases when proyotivopravno other kinds of the animals brought in the Red book to Dew are extracted
sijskoj Federations and (or) protected by international treaties, act it is necessary to qualify under item 256 (at extraction (vylove) water animals) or item 258 (at extraction of other kinds of wild animals) UK the Russian Federation. The given conclusion proves to be true and. 10.2 decisions of Plenum of the Supreme Court Russian FeYOderatsii from 23.11.2010 № 26 [361]. Similar position contains and in and. 13.2 postayonovlenija Plenum of the Supreme Court of the Russian Federation from 18.10.2012 № 21 [362]. At the same time the recognition of norms of item 258.1 UK the Russian Federation special in relation to norms of the item of item 256, 258 UK the Russian Federation does not exclude a data set of crimes. It is possible, when the person at fulfilment of one act simultaneously encroaches on the various objects of fauna which are subjects of different structures of crimes [363] as it agree ch. 2 items 17 UK the Russian Federation cumulative offences admit also one act containing signs of crimes, provided by two or more articles UK the Russian Federation. In similar cases it is necessary to apply prayovilo, provided ch. 1 items 17 UK the Russian Federation, that at set prestupleyony the person bears the criminal liability for each committed crime under corresponding article UK the Russian Federation.

One more ecological crime demanding differentiation with illegal extraction and a turn of especially valuable animals, the act provided by item 259 UK the Russian Federation is. Similarity of the given crimes consists that item 259 UK the Russian Federation, in O.L.Dubovik's fair opinion, is directed on
The prevention of  destruction rare and vanishing species of animals and plants, zaneyosyonnyh in the Red book of the Russian Federation, and their habitat obitayonija [364]. Hence, the recognition object of the crime provided by item 259 UK the Russian Federation, the public relations directed on protection of wild animals, brought in the Red book of the Russian Federation [365], causes konkurenyotsiju the norms provided by the item of item 258.1 and 259 UK Russian Federation.

Moreover, in scientific works [366] and in standard legal acts are noticed, that to a subject of the crime provided by item 259 UK the Russian Federation, all kinds of the animals brought in the Red book of the Russian Federation, in that chisyole and their especially valuable kinds which are included by the Governmental order of the Russian Federation from 31.10.2013 № 978 in a crime subject, predusmotyorennogo item 258.1 UK the Russian Federation concern. At similarity of object and a subject analyzed preyostupleny it is represented, that their differentiation should be spent by sopoyostavlenija acts. The analysis of a disposition of item 259 UK shows the Russian Federation, that the structure danyonogo a crime does not assume illegal extraction or a turn of wild animals, and consists in destruction of critical habitats of data orgayonizmov. Hence, the criminal liability under given article comes for the fact of destruction of the specified territories, that is reduction in full negodyonost when residing of wild animals on it becomes impossible. GiYObel the populations brought in the Red book of the Russian Federation, in it sluyochae represents itself as socially dangerous consequence of a crime, kotoyoroe can come, including, and after long time whereas the acts provided by item 258.1 UK the Russian Federation, are possible only in shape protivoyopravnyh extraction or a turn of especially valuable wild animals.

The act provided by item 259 UK the Russian Federation, made in infringement treboyovany, established items 22 of the Federal act «About fauna» and others
By standard legal acts it can be expressed in realisation hozjajyostvennoj and other activity of the person, for example, in placing and building of settlements, the enterprises, introduction new industrial tehnoloyogy, introduction in economic circulation of virgin lands, land reclamation, carrying out of geologo-prospecting works, mining operations, organizayotsii places of mass rest of the population, pollution of reservoirs and other actions made in places of dwelling, reproduction, nagula, rest and ways of migration of the wild animals brought in the Red book of the Russian Federation.

In V.N.Balandjuka's proved opinion, to critical habitats it is necessary to carry territories (water area) which serve as a place of constant concentration of objects of fauna [367]. Thus, when giyobel the populations brought in the Red book of the Russian Federation (in that chisyole especially valuable wild animals carried to a category), becomes rezultayotom destructions of habitats of the given organisms and it is not connected from them neposredyostvennoj by extraction or a turn sodejannoe it is necessary to qualify the Russian Federation under item 259 UK. However qualification on set prestupleyony, the provided items of item 258.1 and 259 UK the Russian Federation is here again possible. For example, when the person, dopuyostivshee  destruction of especially valuable wild animals as a result of economic or other activity, in the subsequent appropriates the lost especially valuable wild animal, its parts or derivatives.

Problems of differentiation of poaching with crimes against sobyostvennosti rise in scientific works throughout long vremeyoni [368]. Rather-legal analysis of the acts provided by item 258.1 UK the Russian Federation, and crimes against property has shown, that they have much the general priyoznakov. In particular, the acts provided by item 258.1 UK the Russian Federation, are made concerning especially valuable animals as what live in a condition esteyo
stvennoj freedom, and what are in the property or in possession of physical persons and the organisations. Besides, as results izuyochenija judiciary practice testify, the acts made concerning parts and derivative especially valuable animals are widespread. Criminal posjagayotelstva are frequently made concerning consumer goods already processed and ready to use. For example, under item 258.1 UK the person has been condemned for illegal sale of a skin of a leopard [369].

Earlier in the criminal law theory the following rule otgraniyochenija poaching from crimes against property was applied: the person, protivopravyono the extracted animal, bore responsibility for plunder of another's property, esyoli an animal were in a bondage condition, contained or grown up in specially equipped or adapted reservoirs, nurseries, voleyorah, zoos and other objects of welfare appointment. The attention was repeatedly paid to it obstoyojatelstvo in decisions of Plenum VerYOhovnogo of Court of the Russian Federation [370]. In scientific works the given approach [371] as it is based on positions of item 4 of the Federal act «About zhiyovotnom the world» that the objects of fauna legally withdrawn from sostoyojanija of natural freedom, pass in private, state, munitsipalyonuju or other pattern of ownership was divided.

Addition UK the Russian Federation new article 258.1 has created a certain legal collision as under given article the criminal liability comes, including, for wrongful acts concerning especially valuable animals who have left a condition of natural freedom, hence, have ceased to be wild. The developed situation has put the pressing question having the big scientific and practical value, scopes - before a science of criminal law

Whether vaet a disposition of item 258.1 UK the Russian Federation all acts on illegal occupancy of especially valuable objects of fauna, including their plunder, or in the latter case it is necessary to qualify sodejannoe under articles of chapter 21 UK the Russian Federation?

Taking into consideration, that subjects of the crimes provided by item 258.1 UK the Russian Federation, and crimes against property can coincide, razgranicheyonie the given acts it is necessary to spend on the objective party. The comparative analysis has revealed certain similarities of such signs of plunder, as protivoyopravnye withdrawal and the reference, with illegal extraction and acquisition of especially valuable animals. Thus, by rules of qualification in the conditions of competition presence in the specified norms and with a view of differentiation of crimes to signs of the objective party it is necessary to compare above-named poyonjatija, to reveal similarities available between them and distinctions [372].

The concept "plunder" reveals in the note to item 158 UK the Russian Federation. The concept "extraction" also has standard definition in ecological zakonodatelyostve. Similarity of the given concepts consists in the following. First, objazatelyonym as a sign of both crimes their illegality acts. Secondly, both extraction, and plunder are made in the form of withdrawal. Thirdly, specified preyostuplenijami the material damage is caused. According to the note 1 to item 158 UK the Russian Federation plunder is caused a damage to the proprietor or other vladelyotsu this property. In Federal act item 4 «About fauna» ustanovleyono, that the fauna within territory of the Russian Federation is a state ownership, hence, illegal extraction of especially valuable wild animals causes a damage to the state [373]. Fourthly, that testifies to similarity of illegal extraction of such animals to plunder obstojayo
telstvo, that the majority of the crimes provided by item 258.1 UK the Russian Federation the same as also plunders are made with the express intent and mercenary motive.

Despite similarity presence analyzed crimes have and sushcheyostvennye differences which allow to differentiate them. According to the note 1 to item 158 UK the Russian Federation plunder is made concerning another's property. Objects of fauna though admit a state ownership in sootvetyostvii with the Federal act «About fauna», but are not allocated grazhdansko - a legal status of the state-owned property [374].

The property leaves from pravoobladanija the proprietor only in case of its will, except for the cases directly provided by the civil legislation, for example, in case of its  destruction, loss or withdrawal on osnoyovanijam, specified in the law. The wild animals who are in a condition esteyostvennoj freedom, on the contrary, are subject to unlimited migration, can neodyonokratno change in the life the accessory to the certain state. Especially such kinds as birds of passage, water animals neyoodnokratno within a year cross borders of our state, leaving its property and coming back back.

The above-stated testifies to a special legal status wild zhiyovotnyh according to which they it is considered the property of the concrete state until are in its territory. It proves to be true item 214 GK the Russian Federation according to which natural resources, including wild zhiyovotnye, admit a state ownership except for cases when they are in the property of citizens, legal bodies or munitsiyopalnyh formations. Hence, the recognition of wild animals gosudarstvenyonoj the property does not allocate with their legal status «state imushcheyostvo». The property which is in a state ownership, should be
It is registered and fixed to the certain competent subject, including with transfer on the right of economic conducting or an operational administration to the state bodies or the organisations. Hence, absence balansoyoderzhatelja wild animals interferes with inclusion of the last in legal kateyogoriju "state-owned property". A conclusion about a special legal status of wild animals in comparison with other kinds of a state ownership podyotverzhdaetsja Federal act item 4 «About fauna» that norms of the civil law, concerning property, are applied to objects of fauna with the withdrawals established by the ecological legislation.

Thus, the basic criterion, allowing to differentiate illegal extraction of especially valuable wild animals and plunder, that the ecological legislation makes the special demand to an extraction subject - the wild animals who are in a condition of natural freedom in an environment of dwelling and on whom does not extend obligatory priyoznak plunders - another's property is. In JU.I.Lyapunov's fair opinion, the wild animal loses the status "wild" when it physically obosobyoljaetsja from an environment, its ability to live passes under the actual control of people, and their maintenance is provided with work of the person [375].

The following act provided by item 258.1 UK the Russian Federation which also requires differentiation with plunder, acquisition of especially valuable animals is. Similarity of the given acts consists that in both cases in rezulyotate wrongful acts guilty becomes the actual owner of a subject of a crime, receiving thus real possibility of it polzovatyosja and to dispose. Acquisition in legal sense is based on norms of civil law. According to item 218 GK the Russian Federation lawful acquisition predpoyolagaet transfer of any subject as a result of the civil-law transaction, or on other bases provided GK the Russian Federation and (or) others normativnyyomi by legal acts. For example, realisation of parts and derivatives especially to the price
nyh animals it is regulated by Rules of sale of separate kinds of the goods, approved by the governmental order of the Russian Federation from 19.01.1998 № 55 [376]. Hence, it is necessary to understand fulfilment of actions as illegal acquisition of especially valuable animals (except for their extraction), directed on occupancy and possession the given subjects (napriyomer, purchase, assignment found etc.) with order infringement, ustanovlenyonogo standard legal acts.

Thus, results of the analysis of the current legislation, postayonovleny Plenum of the Supreme Court of the Russian Federation, scientific works, eksyopertnyh interrogations allow to approve, that illegal acquisition of especially valuable animals the same as also illegal extraction, do not fall under concept of plunder of another's property [377].

Difficulties at qualification arise at definition in quality predyometa a crime provided by item 258.1 UK the Russian Federation, not only the most especially valuable wild animal, but also its part or its derivatives. The legislator has not explained the maintenance of these concepts. In this part it is necessary to be guided on suyodebnoe interpretation [378]. According to an explanation of Plenum of the Supreme Court of the Russian Federation a turn such animal (item 258.1 UK the Russian Federation) (including them chayosti and derivatives), are supposed only in unusual cases, predusmotyorennyh by norms of the ecological legislation (for example, with a view of preservation of objects of fauna, realisation of monitoring of a condition of their population,
Regulations of their number, public health care, elimination of threat for human life, protection from mass diseases selskohozjajstvenyonyh and other pets, maintenance of conducting a traditional way of life and realisation of traditional economic activities radical mayolochislennyh the people of the North, Siberia and the Far East Russian FederaYOtsii), on the basis of permissions (administrative licences), received when due hereunder, and with observance of the conditions provided in them. Thus, animals, parts and derivatives which have carried over at a lawful turn, are already property of citizens or legal bodies. Their illegal withdrawal should be qualified as plunder of another's property.

The following problem question at qualification of acts, predusmotrenyonyh item 258.1 UK the Russian Federation, is connected with presence of a competition to such adjacent corpus delicti, as cruel treatment with animals. Is more often this question can arise at a criminally-legal estimation of an illegal turn (soderzhayonie, storage, transportation, transfer) especially valuable wild animals, nahodjashchihyosja in bondage. According to a disposition ch. 1 item 245 UK the Russian Federation severe obrashcheyonie with the animals, entailed their  destruction or a mutilation, comes under to qualification under given article in the event that this act is made from hooligan pobuzhdeyony, either from mercenary motives, or with application of sadistic methods, or in the presence of the juvenile. In case of an establishment of such fact severe obrayoshchenija with especially valuable wild animals of action guilty the Russian Federation follows kvaliyofitsirovat under the cumulative offences, provided items 245 and item 258.1 UK.

Special difficulty at qualification of ecological crimes vyzyvayoet an estimation of illegal acts of the several persons considered in quality oryoganizovannoj of group. As has explained Plenum of the Supreme Court Russian FedeYOratsii, at the committing a crime, provided by item 258.1 UK the Russian Federation, grupyopoj persons on preliminary arrangement, actions of the guilty are qualified on ch. 1 items 258.1 UK the Russian Federation as the given sign is absent in article in quality kvayolifitsirujushchego. Other problem in a recognition of a group of persons organised
Group which is allocated by the legislator in ch. 3 items 258.1 UK the Russian Federation. As a whole it is necessary to be guided on ch. 3 items 35 UK and on judicial interpretation concerning signs of such group, containing in various decisions of Plenum of the Supreme Court of the Russian Federation [379]. Moreover, all participants of the organised group irrespective of the executed role, should admit a co-author, and them dejyostvija the Russian Federations without the reference to item ZZ UK the Russian Federation should be qualified under item 258.1 UK. The persons who directly were not participating in extraction especially valuable wild zhiyovotnyh, but promoting fulfilment of this crime by councils, ukazaniyojami, granting of tools of hunting, vehicles, come under to the criminal liability as helpers under item 258.1 UK the Russian Federation referring to ch. 5 items 33 UK the Russian Federation provided that were authentically known to them about illegality of actions concerning especially valuable wild animals.

The important scientifically-practical value has a question otgranichenija ugolovyono punishable poaching from administrative violation. On it obyorashchaetsja attention in the scientific literature [380]. In A.M.PleYoshakova's fair opinion, the given problem is caused kollizionnostju norms criminal and adminiyostrativnogo legislations in the field of protection of objects of fauna [381]. ObYOshchy the approach divided by the majority of scientists at differentiation ekologicheyoskih of crimes and administrative violations, is based on polozheniyojah item 14 UK the Russian Federation and item 2.1 KoAP the Russian Federation. Rather-legal analysis of the given norms allows to allocate qualitative criterion of such differentiation - administrayotivnoe the offence unlike a crime is characterised not the general
stvennoj danger, and less negative sign - public vrednoyostju. It is underlined the given basis of differentiation of adjacent ecological crimes and administrative violations and in scientific works. NapriYOmer, V.V. Petrov is noticed, that signs of ecological crimes and adyoministrativnyh offences frequently coincide. Therefore higher degree of the social danger of a crime demands inclusion dopolnitelyonyh signs which should be reflected in the criminal law by the description of basic elements of structure of an ecological crime [382]. E.N.Zhevlakov also underlines necessity of a legislative regulation of the social danger for dispositions of articles UK the Russian Federation. In this case process otgranichenija ecological crimes from administrative violations sushcheyostvenno will be facilitated. In its opinion, similar discriminating signs can zayokljuchatsja in instructions for the size of a damage, approach of other consequences, narusheyonie certain ecological instructions, ways of fulfilment prestupleyonija, the form of fault [383].

At differentiation of crimes and administrative violations on objects of fauna it is necessary to take into consideration such factors, as hayorakteristika an encroachment subject, facultative signs of the objective party of the act, the caused damage and other circumstances, which in the set harakterizirujut sodejannoe as socially dangerous act or socially harmful act. Rather-legal analysis shows, that adjacent to a crime provided by item 258.1 UK the Russian Federation, is adminiyostrativnoe an offence provided by item 8.35 KoAP the Russian Federation as in both cases of act consist in wrongful extraction and the turn of objects of fauna brought in the Red book of the Russian Federation and (or) protected by international treaties.

The maintenance of dispositions of given articles UK the Russian Federation and KoAP the Russian Federation svidetelstvuyojut about their essential similarity. First, the criminal liability and admiyo
nistrativnaja responsibility are established for wrongful acts, that is made with infringement of the order established by standard legal acts. For example, extraction of the water bioresources brought in the Red book of the Russian Federation, can be carried out only in an order defined by the governmental order of the Russian Federation from 24.12.2008 № 1017 [384]. According to the given decision the actions made without the permission of (licence) or with infringement of conditions concern the illegal, specified in the permission (licence). Secondly, the acts provided by item 258.1 UK the Russian Federation and item 8.35 KoAP the Russian Federation, are identical and consist in illegal dobyyoche, the maintenance, acquisition, storage, transportation, transfer, sale zhivotyonyh. Thirdly, subjects of the given corpuses delicti and administrative violation are the animals brought in the Red book of the Russian Federation and (or) protected by international treaties, and also their parts and derivatives [385]. Fourthly, the subjective elements essential to the offence, provided by item 258.1 UK the Russian Federation, and structure of the administrative violation provided by item 8.35 KoAP the Russian Federation are similar. So, the subjective party of a crime and the subjective party of administrative violation hayorakterizujutsja the deliberate form of fault, and subjects in the first and in the second cases (at administrative violation fulfilment physical liyotsom) are the made physical persons who have reached of 16-year-old age on
The moment of fulfilment of act. Presence of such set identical priznayokov considered acts causes occurrence conflict situayotsy in investigatory and judiciary practice as difficult precisely to choose sootyovetstvujushchuju norm and correctly to qualify act.

Rather-legal analysis has shown, that at similarity of the majority of signs of considered acts criteria for their differentiation are put in pawn in special signs of a subject of the crime provided by item 258.1 UK the Russian Federation. In particular, responsibility under item 8.35 KoAP the Russian Federation is provided for encroachments on all kinds of animals brought in the Red book of the Russian Federation or protected mezhduyonarodnymi by contracts. While a crime subject, predusmotrenyonogo item 258.1 UK the Russian Federations, admit only especially valuable kinds. The author above in the dissertation and before published scientific articles noticed [386], that ischerpyyovajushchy the list of such objects of fauna is certain by the governmental order of the Russian Federation from 31.10.2013 № 978 [387].

The above-stated allows to draw a conclusion, that the criterion otgranichenija a crime provided by item 258.1 UK the Russian Federation, from administrative pravoyonarushenija, provided by item 8.35 KoAP the Russian Federation, is put in pawn in features predyometa crimes. Responsibility under item 258.1 UK the Russian Federation is provided for protiyovopravnye extraction and a turn only those kinds of the wild animals brought in the Red book of the Russian Federation and (or) protected international doyogovorami which are included in the list of especially valuable wild animals, utveryo
zhdyonnyj the governmental order of the Russian Federation from 31.10.2013 № 978. The offered approach on differentiation of analyzed acts in which basis features of a subject of a crime are put, proves to be true rezulyotatami expert interrogations and judiciary practice [388].

Rather-legal analysis has allowed to reveal one more important proyoblemu, consisting that at legislative level in a case konkurenyotsii norms UK the Russian Federation and KoAP the Russian Federation, as a rule, in articles KoAP the Russian Federation is established a priority of norms of criminal law before administrative law. In particular, in dispositions of many articles KoAP the Russian Federations are available reservations, that responsibility under corresponding article KoAP the Russian Federation comes under a condition if actions of the person do not contain crime signs.

For example, in a disposition of item 8.35 KoAP the Russian Federation too is such reservation. Thus, in case of a competition of item 258.1 UK the Russian Federation and item 8.35 KoAP the Russian Federation otvetstvenyonost should come under criminal law article provided that in dejstviyojah persons contain all signs of the given corpus delicti.

The special role in development of rules of qualification belongs to Plenum VerYOhovnogo of Court of the Russian Federation which in the decisions pays attention of vessels to criteria of differentiation of adjacent crimes and adminiyostrativnyh offences. For example, similar rules of differentiation otyodelnyh ecological crimes and ecological administrative pravoyonarusheny contain in the decision of Plenum of the Supreme Court of the Russian Federation from 18.10.2012 № 21. So, in items 14, 22 given decisions razjasyo
njajutsja the bases for differentiation of penal illegal hunting (item 258 UK the Russian Federation) and administrative violation of rules of hunting (ch. 1 items 8.37 KoYOAP the Russian Federation), illegal cabin of wood plantings (ch. 1 items 260 UK the Russian Federation) and the adjacent administrative violation provided by item 8.28 KoAP the Russian Federation [389].

However recommendations about differentiation of the crime provided by item 258.1 UK the Russian Federation, and the administrative violation provided by item 8.35 KoAP the Russian Federation, in decisions of Plenum of the Supreme Court Russian FederaYOtsii on affairs about ecological crimes are absent. In this connection predyolagaetsja to add the decision of Plenum of the Supreme Court Russian FedeYOratsii from 18.10.2012 № 21 and the decision of Plenum of the Supreme Court of the Russian Federation from 23.11.2010 № with 26 [390] following positions: « Criterion otgraniyochenija a crime provided by item 258.1 UK the Russian Federation, from the administrative violation provided by item 8.35 KoAP the Russian Federation, is inclusion predyometa crimes in the list of especially valuable wild animals approved poyostanovleniem of the Government of the Russian Federation from 31.10.2013 № 978 [391]. In sluyochae an illegal turn of the wild animals brought in the Red book of Rosyosijsky Federation and (or) protected by international treaties, but especially valuable wild animals not included in the specified list for item 258.1 UK the Russian Federation, sodejannoe it is necessary to qualify as administrative prayovonarushenie under item 8.35 KoAP the Russian Federation »[392].

At the same time the analysis of a disposition of item 8.35 KoAP has shown the Russian Federation, that one of the acts provided in it possesses a social danger sign. And according to item 14 UK the Russian Federation and item 2.1 KoAP the Russian Federation at presence in act of the social danger responsibility should come under the criminal law. So, in item 8.35 KoAP the Russian Federation is provided extraction of the animals brought in the Red book of the Russian Federation, or protected by international treaties. The matter is that the criminal liability for illegal extraction of animals, zaneyosyonnyh in the Red book of the Russian Federation, or protected mezhdunarodyonymi contracts, but wild animals not concerning especially valuable kinds, should come under the item "and" ch. 1 items 256 or the item "in" ch. 1 items 258 UK the Russian Federation. For example, in the decision of Plenum of the Supreme Court of the Russian Federation from 18.10.2012 №21 it is specified, that under the item « In »ch. 1 item 258 UK the Russian Federation it is necessary to qualify protiyovopravnuju hunting concerning birds and the animals brought in the Red book of Rosyosijsky Federation and (or) are protected by international treaties. However, responsibility for illegal extraction of the given kinds of animals odnovreyomenno is provided and in item 8.35 KoAP the Russian Federation. Hence, there is a problem: in what cases it is necessary to apply norms KoAP the Russian Federation, and in what - UK the Russian Federation. With the account of recommendations of Plenum of the Supreme Court of the Russian Federation from 18.10.2012 № 21 illegal extraction of the animals brought in the Red book of the Russian Federation and (or) protected by international treaties, it is necessary kvaliyofitsirovat under item 256 item, 258 or 258.1 UK the Russian Federation. Similar opinion priderzhiyovaetsja the majority of the interrogated experts (about 90 %).

Being based on the above-stated it is offered to exclude from structure adyoministrativnogo an offence provided by item 8.35 KoAP the Russian Federation, nezayokonnuju extraction of the animals brought in the Red book of the Russian Federation and (or) protected by international treaties as responsibility in this case is provided by norms of the criminal law.

Offered changes will allow to minimise errors in investigatory and judiciary practice at qualification of the acts made concerning especially valuable wild animals.

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A source: Bazarov Pavel Rustamovich. Criminally-right protection especially valuable wild animal and water biological resources. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2017

More on topic § 1. Qualification of the crime provided by item 258.1 UK the Russian Federation, and otgranichenie from adjacent crimes and offences:

  1. § 2. Otgranichenie the corpus delicti provided by item 264 UK the Russian Federation from adjacent and other structures of crimes.
  2. 2. Otgranichenie the corpus delicti provided by item 264 UK the Russian Federation from adjacent and other structures of crimes.
  3. Chapter 3. Problems of qualification of the crime provided by item 258.1 UK the Russian Federation, and perfection of sanctions for its fulfilment with a view of differentiation of the criminal liability
  4. 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.
  5. 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.
  6. § 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
  7. § 4. The qualified corpuses delicti, provided by item 258.1 UK the Russian Federation
  8. § 3. The subjective elements essential to the offence, provided by item 258.1 UK the Russian Federation
  9. § 2. The objective party of the corpus delicti provided by item 258.1 UK the Russian Federation
  10. §1. Qualification and otgranichenie a false denunciation from adjacent crimes
  11. §2. Qualification and otgranichenie false witnesses from adjacent crimes
  12. Chapter 2. The criminally-legal characteristic of the corpus delicti provided by item 258.1 UK the Russian Federation
  13. § 3.1. Qualification of retail of alcoholic production the minor at cumulative offences and otgranichenii from competing and adjacent structures of crimes
  14. Otgranichenie terrorism from adjacent structures of crimes
  15. the Appendix of 1 Illustration and the short characteristic of especially valuable wild animals who are coming under criminally-right protection under item 258.1 UK the Russian Federation
  16. § 2. Features of structures of the administrative violations provided by item 5.35 KoAP the Russian Federation
  17. 2. Criminal trespasseson the adjacent rights are provided item L.335-4 of the Code about intellectual property of France.
  18. the CORPUS DELICTI PROVIDED by ITEM 264 UK of the RUSSIAN FEDERATION
  19. § 2.2. The objective party of the crime provided by article 151.1 UK the Russian Federation
  20. CHAPTER 1. The OBJECTIVE And SUBJECTIVE ELEMENTS ESSENTIAL TO THE OFFENCE, PROVIDED by ITEM 264 UK of the RUSSIAN FEDERATION