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§ 2. Subjective signs of structure of infringement of rules of traffic and operation of vehicles

Correctly to qualify a crime and to define adequate responsibility of the guilty person for infringement of rules of traffic and operation of vehicles, it is not enough to establish only external circumstances of event expressed in objective elements essential to the offence.

It is necessary to find out also subjective signs of a crime (corpus delicti) which concern the perpetrator and the subjective party of a crime (corpus delicti).

The perpetrator in general the physical responsible person who has reached of statutory age admits criminal law, the made socially dangerous act, and capable to bear the criminal liability. Item 19 UK the Russian Federation specifies us three obligatory signs, characterising the person as the perpetrator: 1) physical properties; 2) responsibility and 3) achievement of the age established by the criminal law.

Though any persons accepting direct participation in process of movement in quality can be participants of traffic
The driver, the pedestrian, the passenger of a vehicle, from a disposition of item 264 UK the Russian Federation follows, that the subject of particularly it is crime in transport the person operating a vehicle is.

Growth of total of road and transport crimes with heavy consequences is caused last years basically by increase in these indicators on fault of drivers of vehicles. Researches of safety of the traffic, spent to the various countries within last decades, have shown, that in system "road-driver-car" the weakest the link is the driver. [64]

The concrete definition of signs of the subject in the text of a disposition of article 264 UK shows the Russian Federation, that this person operating the car, tram or other mechanical vehicle, broken rules of traffic or operation of the vehicles, the causing which has entailed on imprudence of heavy harm to health ( destruction of people).

The person operating one of kinds of vehicles, listed in item 264 UK the Russian Federation can be the made person who has reached 16-years. In some cases the actual age can be above, as to management of separate types of transport (for example, the tram, bus, trolley bus) suppose only persons, more senior
Age. Thus for qualification of actions guilty under item 264 UK the Russian Federation has no value, whether the person own vehicle or belonging state, municipal, public, other organisations operated, has made failure in an operating time or during free time from it, operated a vehicle legally or as a result of autocratic capture and stealing, whether there was at guilty at the moment of management of a vehicle driving licence or it had no, or has been deprived them.

In certain cases the persons actually being at the wheel and operating vehicles, are not responsible for infringement of rules of traffic. It concerns the persons trained in practical driving. It is norm, unfortunately, directly it is not fixed in traffic Rules. In section 21 of Rules «Educational driving» it is a question only that educational driving on roads is supposed only with training and in the presence of initial skills of management at the trainee. Besides, according to Rules the mechanical vehicle used for training to driving and belonging to training organisation (driving school), should be equipped by additional control means for the trainee (additional pedals of a drive of coupling and a brake).

As it is underlined in instructions on driving, the instructor during training to practical driving is responsible for actions of the ward (cadet) and observance of traffic rules by it. It bears responsibility if as a result of non-observance of safety rules of movement there have come socially dangerous consequences.

For example, instructor Ivakin during employment on training to practical driving has planted acquaintances in salon of the car and has instructed ward Krylov to go for a city where there was a cafe where everything including Krylov trained in driving, have taken alcoholic drinks.

On a way back the Krylov who was in state of drunkenness has not managed to drive, the car has turned over, and two passengers were lost. The regional court recognised Krylov guilty on ch. 3 items 264 UK the Russian Federation. However the Supreme Court of the Russian Federation, having taken into consideration, that Krylov has spent for practical driving only 10 hours, and by existing rules the cadet during training completely submits to instructions of the instructor, has ceased criminal case concerning Krylov, recognising guilty of a road and transport crime on ch. 3 items 264 UK the Russian Federation instructor Ivakina. [65]

In this case, in our opinion, in actions of trainee Krylov there is no structure of a motor transportation crime. However raises the doubts validity of its clearing of the criminal liability in general. Krylov's actions fall under signs of the crime providing responsibility for careless causing of death (item 109 UK the Russian Federation). It had been broke the elementary rules of precaution obvious to any made citizen: in a state of intoxication, it has sat down for a car wheel in which salon there were people. Hence, Krylov could and should expect possibility of approach from its such actions of socially dangerous consequences, in this case, the heavy.

However position varies in cases when the pupil meaningly neglects instructions of the instructor training to its management by a vehicle or educational driving if it has entailed infringement of a safety rule of movement and the consequences provided by item 264 UK the Russian Federation. Such pupil comes under to the criminal
Responsibility. [66] in cases of fulfilment by the instructor and the pupil of actions joint simultaneous and supplementing each other (bezdejstvy), the safety rules which have entailed infringement of movement and approach of the consequences specified in the law, both of them should come under to the criminal liability. [67]

So, on ch. 2 items 264 UK the Russian Federation Kungursky city court of Perm area Belousov, it is recognised by guilty that on December, 12th, 1996 in settlement Komsomol Kungursky area, not having the driver's licence, at driving ГАЗ-53, has admitted infringement of requirements of item 8. 12 Rules of traffic therefore has caused deadly damages Blohinu and easy physical injuries with health frustration, Ashrafzjanovu. As it was found out in the course of investigation, Belousov and Ashrafzjanov as passengers went in car GAZ-53 operated driver Blohinym. In settlement Komsomol Blohin a backing has approached on doors of cafe "Hero" and together with Ashrafzjanovym left the car for unloading of the goods brought to cafe. And Belousov continued to sit in a car cabin near to a place of the driver. It was cold, and Belousov at the desire of Blohina has turned the ignition key on purpose to warm up the car, not having checked up, whether there is a gearshift lever in neutral position or the car costs on a manual brake. At turn of the ignition key the car has sharply moved and has gone back, having pressed the back to wall Blohina and Ashrafzjanova.

As has shown Belousov, it did not sit down to a wheel, any maneuver or a driving did not carry out. These indications are confirmed by the scene record of search, the certificate of investigation of incident, and also indications of victim Ashrafzjanova. Business in relation Blohina has been ceased in connection with his death. Thus, from set of the collected proofs on business followed, that Belousov the car did not operate. According to ч.2 item 264 UK the Russian Federation comes under to the criminal liability the person who operating the car and has broken rules of traffic or operation of vehicles. Taking into account this action Belousova have been retrained with ch. 2 items 264 UK the Russian Federation on ch. 1 items 109 UK the Russian Federation, providing responsibility for death causing on the imprudence which sanction is less strict, than the sanction ch. 2 items 264 UK the Russian Federation. [68]

It is necessary to notice, that a finding in the car of the instructor - of the driver (training), taken a place near to the pupil (trainee), does not release the last from responsibility for traffic safety maintenance. «Under the general rule for the failures admitted by the pupil during practical driving on the car with double management, responsibility the instructor, instead of the pupil bears». [69] It is a question, it is visible about cases, when the instructor has not accepted timely measures on prevention of road and transport incident if to judge on judiciary practice. [70]

The trainee can be relieved from responsibility not in all cases. In the same Rules it is told, that «educational driving on roads is supposed only with training, and in the presence of initial skills of management at the trainee. The trainee is obliged to know and carry out
Requirements of Rules (the item of item 21.2 of Rules). Hence, training and the duties assigned to it do not remove presence by a number from the trainee of its duties on observance PDD during training, and in case of road accident fulfilment - does not release it from the criminal liability.

Cannot be relieved from responsibility and the person which at management of a vehicle have conceded a driver's place in infringement of requirements of the Rules forbidding «to transfer control of a vehicle to the persons who are in state of drunkenness, under the influence of medical products, in the painful or tired condition, and also to the persons who do not have at the driver's licence on the right of management by a vehicle of the given category» (item 2.7). Certainly, in this case the person who has admitted infringement of rules on transfer of a wheel of management, itself directly is not at present «the person operating a vehicle» as it is demanded by a disposition of item 264 UK the Russian Federation. However the matter is that in a situation considered by us such person has admitted infringement in management of a vehicle. And, if, its infringement became one of the reasons of the road accident made drunk or not by the skilful person, appeared at the wheel it should incur

Responsibility.

In reality cases when the person operating a vehicle, leaves it are frequent, not having accepted the corresponding measures excluding spontaneous movement on a bias. As a result, the car which has begun spontaneous movement makes arrival on pedestrians or makes collision with other vehicles. As is known, Rules (item 12.8), forbid the driver «to leave the place or to leave a vehicle if the necessary measures excluding spontaneous movement of a vehicle are not taken...» It means, that though at the moment of incident of the driver did not take the helm and was out of the transport
The means admitted by it of infringement in the presence of statutory consequences should be qualified under item 264 UK the Russian Federation.

As the Russian Federation is underlined in one of Comments to item 264 UK, motives and character of the admitted infringements of rules of traffic or operation of vehicles do not influence qualification, but should be considered at awarding punishment. [71]

The criminal law establishes, that the person comes under to the criminal liability only for those public dangerous actions (inactivity) and the come socially dangerous consequences in which relation its fault is established.

The subjective party of a crime is a mental relation guilty to socially dangerous act made to them provided by the criminal law as a crime and come consequences. It represents an obligatory element of the corpus delicti and is expressed in the various intellectual strong-willed and emotional moments, in their various shades and combinations primenitelno both to the certificate of act, and to connected with last circumstance preceding it, existing simultaneously with it or concerning the future time. [72]

Thus for qualification of a crime such mental relation which was at guilty during committing a crime matters only. A condition of mentality guilty after
Committings a crime does not influence qualification already it before sodejannogo, but can have great value for definition to the person of the concrete punitive measure. [73]

The subjective party of the corpus delicti represents set of the signs provided by the criminal law characterising the mental relation of the person to made act, containing the given structure. It includes only the most general, essential signs of such relation reflected in the criminal law as signs of given structure - the core qualified (that is with aggravating circumstances) or exclusive (that is with extenuations).

The subjective relation of the person to perfect act can have the diversified character and comprise various shades.

The law defines only a minimum of requirements and conditions to which should answer the subjective party of each crime. Outside of these compulsory conditions there are many features of the mental relation of the person to a perfect crime. Moreover, for example, in case of road and transport incident with a deadly outcome when the driver who has made arrival on the pedestrian, is produced innocence as traffic rules were broken by the pedestrian, it at all does not mean, that the defensible driver does not suffer from an event.

At attraction of the person to the criminal liability it is necessary to establish its mental relation to sodejannomu which was expressed in the form of intention or imprudence.

The problem of the subjective party of a crime is one of the most difficult in criminal law. This results from the fact that relation formation to sodejannomu, occurs in interaction of the person to objective circumstances by means of their refraction, comprehension and an estimation and can change, including in the course of committing a crime. Formation (process) of the relation to sodejannomu - result of mental activity guilty. [74]

Proceeding from the aforesaid, the subjective party of structure dorozhno - the crime in transport provided by item 264 UK the Russian Federation, should 2 and 3 given articles are defined on character of the mental relation of the person to infringement of rules of traffic by it and operation of vehicles, to creation, thereby, the actions, emergency conditions and, at last, to those harmful consequences which are provided by parts 1.

However, the disposition of item 264 UK speaks the Russian Federation about infringement by the person operating the car, tram, or other mechanical vehicle, rules of traffic and operation of vehicles which has entailed approach of negative consequences on imprudence.

In the Russian criminal legislation a crime of a similar sort are traditionally considered as made on

Imprudence as the subjective party of this act is defined by the careless relation of the person to possibility of approach public dangerous consequences at infringement of rules of traffic by it and operation of vehicles. [75] under N.I.Pikurova's remark as the Russian Federation the bases for disputes occurring in the past on the mixed form of fault are eliminated at fulfilment of such crimes and possibility of their fulfilment with eventual recklessness is directly spoken about the fault form in item 264 UK. [76]

Discussion in the legal literature of possible attraction guilty to responsibility for a road and transport crime concerning causing of heavy consequences was always reduced to that in the presence of the express intent of its action should be qualified under other articles UK providing, in particular, responsibility for murder or deliberate causing of physical injuries. In such situations criminal acts act as a way of achievement of criminal result, and a vehicle - as the crime instrument that has no anything the general with road and transport crimes [77]. Incidents, «resulted the deliberate actions directed on detrimenting of a life, health of people or material harm, and also the a consequence attempts suffered to commit suicide» as road accident are not considered. [78]

Thus at the analysis of the subjective party of a crime the mental relation not to the fact of infringement of rules, and to the come heavy consequences as responsibility is established depending on consequences is solving.

If on business it will be established, that causing of death or heavy harm to health was covered by intention guilty, sodejannoe it is necessary to consider as a deliberate crime against a life or health of citizens. In the same cases when guilty two independent crimes are consistently committed, one of which was transport, another - against a life or health, its actions come under to qualification on set of the specified crimes.

Imprudence can be expressed in negligence or levity of the person operating a vehicle (ch. 1 items 26 UK the Russian Federation).

Levity takes place when the person, breaking by act or omission of a rule of traffic or operation of vehicles, expects possibility of approach of socially dangerous consequences, but without the sufficient bases to that self-confidently counts on prevention of these consequences (ch. 2 items 26 UK the Russian Federation).

From our point of view, this general calculation is made without features of road conditions, technical possibilities of a vehicle, a condition of the driver, actions of surrounding persons.

Negligence is shown that the person, breaking by act or omission of a rule of traffic or operation of vehicles, does not expect possibility of approach of socially dangerous consequences due to negligence though at necessary attentiveness and foresight should and could expect
These consequences (ch. 3 items 26 UK the Russian Federation) [79]. Obligation of a prediction of possibility of approach of consequences, represents the legal duty of the person operating a vehicle. For a negligence establishment the estimation of possibility for the given person has crucial importance and in the given concrete circumstances to expect those consequences which he does not expect, but should and could expect.

The analysis of the subjective party of a crime should answer, whether the driver could prevent in concrete conditions the come consequences. So, if the driver, passing with a speed of 40 km/hour, makes arrival on the pedestrian and does heavy harm to its health the establishment only is yet enough these circumstances for impeachment for the come consequences. If the pedestrian has suddenly run out because of the met car on distance of two metres the driver could not stop the car both at speed of 60 km/hour, and at speed of 40 km/hour. Therefore in these conditions the driver can bear responsibility only for the fact of excess of speed, but not for the come consequences in which approach there is no its fault, and they take place under the contributory guilt.

Thus, the subjective party of the crime provided by item 264 UK the Russian Federation, owing to criminal law express indication is characterised by only careless relation to the come consequences, that is at necessary attentiveness, and foresight the person should and could expect them. At the same time the legislator in any way does not reserve the mental relation of the person operating the car, tram or other mechanical transport, to the infringement of rules by it of traffic,

Which can be deliberate.

Infringements of rules of traffic, it agree the law (the item 2б4 UK) is made only by negligence or levity. For example, thoughtlessly wishing to scare the pedestrian, the driver passes by it on unlawful speed, counting necessarily in due time to stop the car, but already for the reasons independent of it (ice, an unexpected obstacle, etc.), the car does not stop and there is an arrival.

The criminal negligence is shown, for example, when the driver, distracting conversations, does not notice a sign on restriction of speed and turn therefore runs into ahead going motor vehicle.

As follows from results of interrogation, drivers of vehicles and employees OVD investigating road accidents, spent by us in 2005г., the majority of infringements of rules of traffic is made due to negligence. The retrospective analysis of a road situation and a condition of the driver by is subjective-personal estimations is the most adequate for operative revealing of the factors which influence has led to erroneous reaction and road accident fulfilment. Drivers more often (46,7 %) marked bad state of health before fulfilment of road and transport incident, tested agitation, depression, feeling of anger, the irritation, the caused themes or other significant event for them. Uncontrolled derivation of attention to some time interval (21,4 %) was the following factor, on frequency of occurrence in answers. In these cases drivers could not give at all the certain answer why they have distracted, At them original short-term deenergizing of attention was observed. The forced trip of the driver on unfamiliar road for it (14, 4 %) also is the factor leading to incident. The least number of road and transport incidents (3,5 %), has been made, according to interrogated, owing to technical malfunction of the car.

Nevertheless, the considerable number of infringements of rules of traffic and operation of vehicles, occurs from the realised infringement corrected for any of several reasons: haste, recklessness etc. (except for deliberate at direct either eventual recklessness injury to health or a life of people). All these facts specify in complexity and, simultaneously, importance of revealing of the subjective party of infringement of Rules of traffic and operation of vehicles

Criminal flippancy is necessary for distinguishing from eventual recklessness. Especially it concerns cases of fulfilment of arrivals and collision at attempt to disappear from workers of law enforcement bodies when for the criminal possible heavy consequences of similar race are indifferent. So, citizen Molokanov, not having a driving licence and skills of driving, and also, being unusable on a state of health to operate a vehicle (physical inability of 2 groups, a diabetes), in a condition of strong alcoholic intoxication car "Volga" has stolen. Trying to disappear from employees of motor licensing and inspection department pursuing it, Molokanov for the speed over 120 km/hour at 18 o'clock moved on the central street of a city. Not having managed to drive, it has left on a bus stop in "rush hour". As a result was lost two persons. On interrogation as convicted, he admitted, that during movement it hardly was guided in conditions, but nevertheless continued attempt to disappear. Its actions obosnovanno have been qualified as murder with eventual recklessness as Molokanov though did not wish to take life people absolutely unfamiliar to it, but is indifferent to possible  destruction of any persons. [80]

In road and transport crimes deliberate or careless infringement of safety rules of movement can be combined only with the careless form of fault in relation to act consequences. Chances when it is available both infringements of rules, and the heavy consequences connected with it, however are not present structure of the given crime in a kind of absence of signs of the subjective party of the given crime. As an example we will result materials of criminal case concerning ZHeksimbinova. [81] being on work, he has taken alcoholic drinks, then by a lorry has arrived to a snackbar where has made scandal. When workers of snackbar Skubshchikov also have smartly deduced it on street, ZHeksimbinov has decided to revenge them and about 20-22 m has directed the car towards a porch where they stood. Skubshchikov and Smartly had time to run off, but during this moment on a porch there was a three-year girl who was lost as a result of arrival. Actions ZHeksimbinova have been qualified as attempt at murder of two and more persons on motives to sweep for performance of a public debt by them and murder of the girl by the way dangerous to a life of many persons. The petition for a training for a new profession of actions concerning the girl on article about dorozhno - crime in transport has been dismissed, as at ZHeksimbinova there was an express intent on murder Skubshchikova and Smartly and indirect after the relation to the fact of causing of death to the girl. Therefore object of a crime are not traffic safety relations (i.e. safety of an uncertain circle of persons), and a life and health of concrete people.

According to P.V.Zamoskovtseva and A.I.Korobeeva the subjective party dorozhno - crime in transport is characterised

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Heterogeneity of the mental relation guilty to action and its consequences, [82] i.e. the fault form in relation to infringements of safety rules and the consequences caused by them not always coincide among themselves.

Connection has served in one crime of various forms of fault as an occasion to promotion of various concepts of the "double", "is deliberate-unintentional", "mixed", "difficult" forms of fault, [83] which have been subjected the proved criticism. In 1950th of XX century the opinion that is represented inconceivable was expressed and silly possibility deliberately to do careless harm or, on the contrary, it is careless to do deliberate harm. Statements about double fault within one structure admitted artificial and in practice bringing mess in qualification of crimes. [84]

However any constructive offers for the positive decision of a problem it was not put forward, therefore more and more the wide circulation in the legal literature received such relation to an establishment of the form of fault in fulfilment of a road and transport crime at which in actions of the guilty person followed discriminate its mental relation to infringement of rules of traffic and to consequences of this infringement, i.e. intention in the relation

To actions and imprudence in the relation to their consequences.

The concept of double fault in road and transport crimes

Has arisen again and has received a wide circulation in 1965 when Plenum of the Supreme Court of the USSR has accepted the decision «About judiciary practice on the affairs connected with infringement of safety rules of movement and operation of transport or city electrotransport» in which it was spoken: «to Explain to vessels, that in motor transportation crimes the relation guilty to infringement of safety rules of movement and operation of vehicles can be expressed as in the form of intention, and imprudence, and to the come consequences - only to the imprudence form». [85] Thus, already officially admitted possibility of presence of two forms of fault fulfilment of one road and transport crime. This diploma became the basis of a recognition of possibility of presence of two forms of fault not only in road and transport, but also other crimes.

However double, and other combined forms of fault created a fertile field for acceptance in investigatory and judiciary practice not always true decisions, applying for an estimation sodejannogo any of two forms of fault. In such conditions «on the agenda» there was a question: how to establish the uniform form of fault necessary for removal of a fair sentence. In 1967 on magazine pages «the Soviet justice» G.Kriger who has noticed has acted: «the Majority of supporters of the concept of the mixed fault leave without the answer the major question - deliberate or careless at the mixed form of fault it is necessary to consider as a whole the committed crime» [86].

In 1970 the Supreme Court of the USSR has been forced to address once again to this question and to accept the decision «About judiciary practice on affairs about motor transportation crimes». In it it was spoken: «to Explain to vessels, that according to articles 8 and 9 Bases of the criminal legislation of USSR and union republics the crimes provided by articles 211, 212 (2), 213, 252 UK RSFSR and corresponding articles of other union republics, should be considered as made on imprudence as the subjective party of these acts is defined by the careless relation of the person to possibility of approach of socially dangerous consequences at infringement of safety rules of movement by it or operation of vehicles». [87] That is in the given decision the fault form in act was not considered any more and at the expense of it, it was offered to recognise only one form of fault - imprudence.

In connection with crimes considered by us in the legal literature it is quite often noticed, that «the mental relation guilty to infringement of safety rules of movement and operation of vehicles can be expressed both in the form of intention, and in the form of imprudence, and to the come harmful consequences - only in the form of imprudence». [88]

Attempts of creation of the mixed form of fault in quality independently, constituted of intention and imprudence signs became. So, P.S.Dagel believed, that the mixed form of fault has two versions, one of which "gravitates" to the deliberate

To crimes, another - to careless. [89] however did not speak, that means "gravitates".

In 1987 there was a book «the Criminal law. Experience of theoretical modelling», prepared by Institute of the state and the right of Academy of sciences of the USSR which contained article project «Difficult fault» where it was spoken: «If as a result of deliberate committing a crime the person on imprudence causes other socially dangerous consequences with which the law connects the raised criminal liability this crime as a whole admits made deliberately». [90]

The problem of differentiation of intention and imprudence in cases when actions are made deliberately, and concerning crime consequences, takes place the imprudence, legislatively not resolved remained before acceptance of the Criminal code of the Russian Federation 1996 In the last attempt of the permission of a considered problem, at last, has been made. In its item 27 it is spoken: «If as a result of fulfilment of a deliberate crime heavy consequences which under the law attract more strict punishment and which were not covered by intention of the person are caused, the criminal liability for such consequences comes only in case the person expected possibility of their approach, but without the sufficient bases to that self-confidently counted on their prevention or in case did not expect, but should and could expect possibility of approach of these consequences. As a whole such crime admits made deliberately».

Leaning against item 27 UK the Russian Federation, in one of Comments to which it is specified: «the Subjective party of a crime owing to law express indication is characterised by the careless relation to the come consequences» and it is offered to consider all road and transport crimes only as careless. [91] in other, later Comment to UK the Russian Federation, affirms: «the Subjective party of corpuses delicti is characterised by the careless form of fault in the form of levity or negligence of the person, operating a vehicle, in relation to the come consequences though infringement of rules of traffic and operation of vehicles can be made as deliberately, and on imprudence. However as a whole this crime careless». [92]

Considering difficult structure of the subjective party of structure of a road and transport crime, N.I.Pikurov underlines, that guilty definitely concerned the fact of possible approach of consequences already at the moment of act fulfilment, however before result this relation has no jural significance, remains behind frameworks of the subjective party of administrative violation. In • a case of committing a crime of wine in is administrative-legal sense, i.e. the mental relation to the fact of infringement of special rules, loses the independent value and enters a component (enters, but it is not destroyed) in

The subjective party of a motor transportation crime. [93]

In the theory of criminal law of V.V.Lukjanovym the point of view according to which at fulfilment of motor transportation crimes the eventual recklessness is possible is stated. He approves, that «road and transport crimes in one cases (at the deliberate form of fault in relation to action and consequences) should be carried to the category of deliberate acts, and others (at the deliberate and careless relation - to action and imprudence — to consequences) to admit careless. [94] such sight, in our opinion is caused by that in some cases insignificant validity of hope of favorable issue of a suit in a concrete situation, plus the motivation of infringement of rules of type of hooliganism, recklessness, mischief, etc., really approach such acts to the deliberate. However in the judiciary practice which was based on UK, operating till January, 1st, 1997, there were no affairs about the infringements of rules of traffic characterised by eventual recklessness. The recognition of presence of the last at infringement of Rules of traffic testifies to other character of criminal action and demands attraction guilty, depending on the consequences which have come thus, to responsibility for one of deliberate crimes against person.

The fault form in committing a crime is defined on character of the mental relation guilty to the wrongful acts and consequences of these actions. According to V.V. Lukjanova, in dorozhno - the crimes in transport made by the driver, illegal
Action infringement of rules of traffic and operation of the vehicles, creating emergency conditions which comprise threat of blow of the car deprived of appropriate management, and as result of this action - emergency conditions serves. V.V. Lukjanov are underlined, that by the fault form in fulfilment dorozhno - crime in transport by the driver breaking rules of traffic and operation of vehicles, is defined on character of its relation to the emergency conditions created as a result of this infringement.

The mental relation of the person to everything that starts to occur from the moment of occurrence of emergency conditions including to injury of a life and health of people, any more has no independent value as this harm is caused already by the forces which are not supervised by the person. This mental relation, hence, any more has no independent value and cannot be considered as a legal category of the form of fault as this harm is already caused by forces, ye supervised by the person. Thus, the relation of the driver to injury follows from its behaviour, in the emergency conditions containing threat of injury. If the person created emergency conditions thereby it expected possibility of injury, approaches of socially dangerous consequences of the actions (inactivity), but without the sufficient bases to that self-confidently counted on prevention of these consequences that means presence in actions guilty imprudence in the form of levity.

Further Century In Lukjanov concludes, that the intention of the driver in fulfilment of a road and transport crime can be as straight lines when the driver, deliberately breaking traffic rules, understands that creates emergency conditions, and indirect when the driver supposes
Creation of emergency conditions pli is indifferent to its occurrence.

In spite of the fact that the fault in a road and transport crime has no double form in sense of item 27 UK the Russian Federation, its maintenance is considerably complicated in comparison with usual forms of imprudence. The reference to signs of infringement of rules of traffic means, that the criminal law provides not only the external, objective party of this offence, but includes also all other signs of structure (the subject and the subjective party).

Before to establish fault in criminally-legal sense, it is necessary to find out, whether the driver is guilty of infringement of safety rules of traffic. However it is not enough only objective discrepancy of actions of the driver to rules of traffic for a recognition of presence of structure of an offence.

Difficult character of fault in infringement of rules of traffic can be seen on a following example from judiciary practice.

To the criminal liability for infringement of rules of the traffic, entailed death of the victim, Gerasimov has been involved. Being in a condition of alcoholic intoxication, it operated a motor vehicle belonging to it "Zhigulis" in which salon together with the driver there was a passenger. Road accident has occurred because, moving on streets of a city, Gerasimov has not accepted measures to a stop or a safe detour of an obstacle - the standing car MAZ which was at a roadside with included dimensional headlights. As a result of road accident the passenger of "Zhigulis" from the received heavy damages has deceased.

As it was found out during investigation and then at proceeding, Gerasimov suffered the heavy warm disease accompanied by loss of consciousness. According to its indications during movement at it there has come an unconscious condition, in this connection, it
Some time had no possibility to operate the car because of what there was an arrival. The full court on criminal cases of the Supreme Court of the Russian Federation has specified, that it is necessary for investigation agencies bodies to find out influence of alcoholic intoxication on heart attack occurrence, and also to check up, whether is not present in connection with such disease of contra-indications for management of vehicles. [95]

In overwhelming majority of road and transport crimes infringements not one, and at once the several points of Rules of traffic admitted by the driver take place. In such situation it is difficult enough to define what mental relation guilty to infringement of rules and to a crime as a whole, and what kind of imprudence takes place in this case. Situations when one of rules is broken with the express intent (for example, a drunken-driving), another are possible - by negligence (has not noticed a sign on restriction of speed) difficulties Are, etc. possible at otgranichenii self-confidence from negligence, and on the contrary. Accordingly becomes complicated as a whole and qualification sodejannogo.

Before causing of socially dangerous consequences infringement of rules of traffic is only administrative offence, approach of consequences changes legal nature of an offence (it becomes a crime), but cannot change that mental relation which existed at guilty, to the fact of infringement of rules before socially dangerous consequences. Further the fault maintenance varies only at the expense of occurrence of the new relation to the fact of approach of socially dangerous consequences, i.e. at the expense of increase in number of components of fault.

Establishment of character of the mental relation to the circumstances entering into the objective party of a crime, and such circumstances are not only consequences, but also socially dangerous action (inactivity), promotes correct entering into the objective party of a crime, and such circumstances are not only consequences, but also socially dangerous action (inactivity), promotes correct qualification of a crime and it otgranicheniju from adjacent crimes, helps to concretise social danger degree sodejannogo and persons guilty and by that, affects appointment of the fair punitive measure.

The bulletin of the Supreme Court of the Russian Federation. 1994. № 6. With. 7.

Thus, the subjective party of considered crimes is characterised by exclusively careless form of fault concerning the come harmful consequences which is expressed only in the form of negligence and self-confidence (levity). If the person inattentively operated a vehicle and in due time has not noticed occurrence of any danger on proezzhej a part though could, and should expect it it is obvious, that it has made crime of negligence. In case of a criminal negligence it is necessary to establish presence of its both criteria: the person should expect possibility of approach of socially dangerous consequences (objective criterion) and could expect them (subjective criterion). A question on, whether the person should expect possibility of a consequence of the actions, dares on the basis of requirements of rules of traffic, and prediction possibility is defined depending on concrete conditions. Here it is a question of those infringements which were in a causal relationship from road accident.

In case of levity the person, breaking rules of traffic or vehicle operation, expected possibility of approach of socially dangerous consequences, but without sufficient to
To that of the bases self-confidently counted on their prevention. Usually at negligence of infringement of the person operating a vehicle, are more expressed and are accompanied by active actions. So, not having convinced, that the counter lane is free on sufficient distance, the driver, making overtaking ahead of going transport with departure on a counter lane, has not time to make it therefore there is a collision of vehicles.

Signs of the subjective party of the corpus delicti are very narrowly connected with all other elements of structure. The analysis of the subjective party allows to define correctly object In judiciary practice there are errors at the crimes made with use of vehicles when it is inexact the object on which the intention of the guilty has been directed is defined. So, cases not attraction for murder by use of vehicles even take place at presence at guilty intention on the deprivation of life of the victim. On the other hand, the persons operating a vehicle, sometimes are made accountable under articles punishing for murder, at absence at guilty intention on the deprivation of life of other person. Happens even more difficultly to establish the subjective party of a crime in custom-made murder by means of use of vehicles when it is disguised under accident «with many unknown persons». For example, if the guilty driver of the vehicle has disappeared from a scene.

Crimes.

Qualifications

Conclusion under the paragraph.

The subject of the road and transport crime provided by item 264 UK the Russian Federation, the person operating a vehicle is. Under the current legislation for qualification of a crime under item 264 UK the Russian Federation has no value, whether were at guilty at the moment of management
Transport a driving licence, whether it operated own or belonging state, private or public organisation a vehicle, whether has made failure in an operating time or during free time from it, operated a vehicle legally or as a result of autocratic capture and stealing, whether there was at guilty at the moment of management of a vehicle driving licence or it had no, or has been deprived them.

For infringements of safety rules of movement during educational driving on an educational vehicle with double management the criminal liability is born training, instead of by the trainee if that has not undertaken timely measures for incident prevention. At neglect the trainee of instructions training on management of a vehicle or the educational driving, entailed infringement of safety rules of movement and the consequences provided by article 264 UK the Russian Federation, it comes under to the criminal liability for sodejannoe.

The subjective party of structure of the road and transport crime provided by item 264 UK the Russian Federation, is defined on character of the mental relation of the person to infringement of rules of traffic by it and operation of vehicles, to creation by that by the actions of emergency conditions and, at last, to those harmful consequences which are provided by parts 1, 2 and 3 given articles.

In the Russian criminal legislation a crime of a similar sort are traditionally considered as made on imprudence as the subjective party of this act is defined by the careless relation of the person to the come socially dangerous consequences at infringement of rules of traffic by it or operation of vehicles.

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A source: PERFILOV VLADIMIR PAVLOVICH. Theoretical and practical questions of criminally-legal qualification of infringements of rules of traffic and operation of vehicles. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2008

More on topic § 2. Subjective signs of structure of infringement of rules of traffic and operation of vehicles:

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  2. § 1. Objective signs of structure of infringement of rules of traffic and operation of vehicles
  3. § 1 Objective signs of structure of infringement of rules of traffic and operation of vehicles
  4. § 1. The qualified and especially qualified kinds of infringement of rules of traffic and operation of vehicles
  5. 1. The qualified and especially qualified kinds of infringement of rules of traffic and operation of vehicles
  6. PERFECTION OF THE CRIMINAL LEGISLATION AND PRACTICE OF ITS APPLICATION IN SPHERE OF COUNTERACTION TO INFRINGEMENTS OF RULES OF TRAFFIC AND OPERATION OF VEHICLES
  7. CHAPTER 3. PERFECTION OF THE CRIMINAL LEGISLATION AND PRACTICE OF ITS APPLICATION IN SPHERE OF COUNTERACTION TO INFRINGEMENTS OF RULES OF TRAFFIC AND OPERATION OF VEHICLES
  8. PERFILOV VLADIMIR PAVLOVICH. Theoretical and practical questions of criminally-legal qualification of infringements of rules of traffic and operation of vehicles / the Dissertation / Moscow, 2008
  9. PERFILOV VLADIMIR PAVLOVICH. Theoretical and practical questions of criminally-legal qualification of infringements of rules of traffic and operation of vehicles. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2008 2008
  10. Zokina Anna Mihajlovna. Criminally-legal counteraction to the crimes connected with infringement of safety rules of movement and operation of vehicles: foreign experience; questions of perfection of the Russian legislation. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2019, 2019
  11. § 3.1. Genesis of the Russian legislation regulating the relations in sphere of traffic safety and operation of vehicles
  12. ' ' «§315с Infringement of safety rules of traffic»
  13. § 5. Efficiency of punishment for infringement of rules of traffic on an example of item 264 UK the Russian Federation
  14. 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.
  15. 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.
  16. § 2.1. The Criminal liability for the acts connected with dangerous operation of vehicles, in the legislation of the states of the Continental law
  17. § 1.1. The Criminal liability for the acts connected with dangerous operation of vehicles, in the General law states
  18. §2. Subjective signs of road and transport crimes.
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