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the Conclusion

The research carried out by us has allowed to understand sotsialnopravovuju conditionality of an establishment of criminally-legal interdictions for fulfilment of a false denunciation and false witness, to track a historical way of development of the named norms, to consider experience of the foreign legislator, to reveal actual problems pravoprimenenija item 306 and 307 UK the Russian Federation, their qualification and a legislative regulation, to offer ways of the decision of the put problem questions, to designate directions of the further legislative perfection.

Conclusions and the offers which essence consists in the following became one of results of the work performed by us.

Among crimes against public justice the acts closely connected among themselves not only the general specific object, but also the injury mechanism to additional object are allocated. It is necessary to carry the crimes provided by item 306 and 307 UK Russian Federation to their number. Practice shows, that in considerable number of cases false witness on criminal case acts as the form of realisation of a false denunciation that consolidates their legal nature which, in turn, causes expediency of research of problems of the criminal liability for the named encroachments in their unity.

Character and social danger degree, and also scale of possible negative consequences of fulfilment of a false denunciation and false witness with necessity define exclusively ugolovnopravovuju the form of reaction of the state on considered acts. Sanctions of rules of law of other branches of law cannot provide due protection of interests of justice, the rights and the legitimate interests of the person directly suffering from crimes of this kind.

Crimes against public justice are mainly made by men at the age of 30-49 years which are citizens

The Russian Federation and permanent residents of district of committing a crime, have an average the general or average professional education, concern on an occupation workers or are not occupied by any certain employment, have not removed and outstanding previous convictions at the moment of the committing a crime, forming relapse.

Considering, that the quantity condemned for a false denunciation and false witness constitutes about half from the general number condemned for the crimes against public justice, offered kriminologicheskaja the characteristic can give approximate representation about "portrait" lzhedonoschika and the perjurer.

From times of the Kiev Russia the false denunciation concerning the innocent person was considered as penal act. With the further development criminally-rules of law about responsibility for crimes against public justice by the legislator attempts not to admit condemnation of the innocent person were undertaken.

For a false denunciation and false witness throughout long time (up to HH century) severe enough punishment corresponding to representations about character and degree of the social danger of named acts has been established. Thus socially dangerous consequence in the form of causing of essential harm attracted approach of the raised responsibility.

Historically considerable attention of the legislator was given to struggle against false denunciations while the approach pravoprimenitelja to counteraction to a considered crime frequently was formal.

To the XX-th century beginning in the Russian criminal law there was a system criminally-rules of law, called to provide normal functioning of tribunals and at the same time to protect the rights and legitimate interests of participants of legal proceedings.

After 1917 many achievements of the pre-revolutionary period in considered sphere have appeared not claimed. So, safe conducts of participants of legal proceedings frequently were not observed, judges were guided, first of all, by revolutionary sense of justice, proceeded at decision-making from a social origin and a trade of the legal proceedings of the person involved in process, not caring about presence of due proofs. At the same time by the legislator continued to be undertaken (though there were to a certain extent formal) measures for struggle against crimes against public justice, including the acts which are a subject of the present dissertational research.

Coming into force UK RSFSR and inclusion in it of the separate chapter of "Crime against public justice" became 1960 turning point in criminally-right protection interests of justice. Corresponding encroachments began to be understood not in narrow sense - as directed exclusively against activity of vessels on consideration and the permission criminal and civil cases, and in wide - as crimes against normal activity of vessels and promoting them in delivering justice of law enforcement bodies.

Begun in the late eighties - the beginning of 90th of the XX-th century processes of reforming of the legislation, necessity of creation of independent court within the limits of realisation of a principle of separation of powers have led natural in that case to change criminally-rules of law, protecting participants of the criminal trial, first of all, representatives of the judicial authority, a number of other changes. The scale transformations which have begun in all spheres of a public and political life of the country, have gradually led to comprehension of necessity of acceptance of the new criminal law which will reflect modern realities. Such standard legal act became UK the Russian Federation 1996, in which has been considered (let and not to the full) historical experience of an establishment of the criminal liability for a false denunciation and false witness.

The specified historical experience is necessary for using for perfection of a legislative regulation of responsibility for considered encroachments, first of all, regarding the further differentiation of the criminal liability.

The approach of legislators of Russia, of some the states CIS, Europe and the USA to cases in point is various. So, if the operating criminal legislation of the CIS countries as a whole is characterised by the uniform approach to a regulation of the criminal liability for a false denunciation and false witness in criminal codes of Spain, Germany, Sweden and the criminal legislation of the USA of norm on considered crimes contain in the separate heads devoted to these acts. In criminal codes of Poland and Switzerland corresponding crimes are consolidated in chapters about crimes against public justice that pulls together them with UK the Russian Federation.

In all investigated criminal laws of the states of Europe, the USA and Asian-Pacific region questions of the criminal liability for analyzed acts are in detail enough regulated. Among punishments imprisonment and the penalty prevail, however there are such kinds of punishment as the debaring to occupy corresponding posts or the state post, specialities or trades, time discharge from a post or the state post, a speciality or a trade. In texts of articles cases of refusal of punishment are provided under certain circumstances, in particular, when false indications have no value for adjudication when it is established, that considered illegal acts can be made on imprudence. Not always the legislator allocates special subjects in texts of articles and paragraphs, and sometimes, on the contrary, establishes for them as much as possible strict punishment (as, for example, in UK the Peoples Republic of China). Attracts attention fastening in item 233 UK of Poland of compulsory condition of approach of responsibility - an explanation about responsibility for false testimonies; in item 172 UK of Japan - the purposes of excitation of criminal case concerning the certain person; in item 434-13 UK of France - mercenary character of an encroachment.

The analysis of the foreign criminal legislation shows, that at a formulation of structures of a false denunciation and false witness are equally dangerous both excessive lack of general rules, and excessive laconicism of a statement of dispositions criminally-rules of law. The detailed regulation of responsibility for the given crimes (for example, in UK Germany and Switzerland) allows to solve successfully enough many problems pravoprimenenija, but at the same time can lead to impunity of persons, whose socially dangerous actions do not come within the purview of such interdiction. The simple disposition criminally-rule of law (as it takes place in Japan) frequently causes difficulties at qualification sodejannogo. Taking into account lacks and advantages of the named approaches preferable to the Russian criminal law the short (simple) variant of a statement of dispositions of analyzed structures of crimes is represented. Arising in this connection problems pravoprimenenija can be successfully solved by judicial, doktrinalnogo and other interpretation corresponding criminally-rules of law.

At all existing variety available classifications of crimes against public justice are developed within the limits of two approaches - depending on the perpetrator and its direct object. As both approaches have the advantages and lacks, now for lack of other criteria they quite can be used in a complex, in system unity.

At the same time it is represented incorrect to carry a false denunciation and false witness to various classification groups, being based only on a sign of object of an encroachment as in their nature there is more than similarity, than distinctions. Besides, the acts provided by item 306 and 307 UK Russian Federation, in the interaction strengthen the social danger each other.

The high social danger of a false denunciation is defined by the character of act encroaching on normal (lawful) activity on delivering justice, activity of law enforcement bodies, the rights of citizens. The named crime initially directs law and order bodies on a false way, distracts great strengths and means, including carrying out of long and expensive expert testimonies in court, on check of the false message on a crime, and subsequently (in case of acceptance of the corresponding remedial decision) - on realisation of preliminary investigation. In some cases it can lead even to condemnation of the innocent person that is the roughest infringement of human rights.

As the basic direct object of a false denunciation the public relations providing normal activity of law enforcement bodies and vessels on delivering justice act. Additional direct object are public relations in sphere of the corresponding rights and interests of the victim from a crime.

Subject of a false denunciation is the information informed by the person on committing a crime, and both prepared, and made or ended. Messages on other offences, torts and offences of the criminal liability do not attract.

The objective party of the corpus delicti provided by item 306 UK the Russian Federation, consists in the actions forming a false denunciation in committing a crime. The form of fulfilment of such actions can be different - written and oral, personal and with attraction of other persons, by means of various channels of communications - post, a fax communication, computer or cellular networks, with use of a network "Internet" etc. the Subsequent summer residence of false indications in a substantiation of the false denunciation of independent qualification does not demand, as is its continuation.

As addressees of a false denunciation the public authorities allocated with powers on realisation of criminal prosecution act, first of all: corresponding divisions of system of Investigatory committee of the Russian Federation, FSB of Russia, the Ministry of Internal Affairs of Russia, Office of Public Prosecutor of the Russian Federation (first of all, regarding public prosecution maintenance) etc.

Besides, it is necessary to carry to addressees of a false denunciation and other enforcement authorities which though do not carry out criminal prosecution, are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies. Such addressees are bodies of the customs control, tax organs, administrations of local governments etc.

The social danger of the denunciation directed not directly in body of criminal prosecution, and in establishments which do not carry out criminal prosecution, but are obliged to transfer messages on prepared or perfect crimes to law enforcement bodies, it is identical to the denunciation social danger, directed by the guilty person in body or to the official, proxy to excite criminal case.

The false denunciations made by means of use of telephone, facsimile and other communication, the networks "Internet" extended in mass media, and also anonymous messages on a crime are similarly not less dangerous. As a rule, in such cases applicants either are unknown, or are not warned about the criminal liability under objective causes. The named denunciations can lead to criminal case excitation, including concerning the concrete person, and connected with these negative consequences.

On a design of the objective party the false denunciation concerns crimes with formal structure and it is considered ended from the moment of receipt of such message in body, proxy to excite criminal case, any by (personally from the applicant, by mail, from other organisations). Acquaintance with the maintenance of a false denunciation, its subsequent check, acceptance of remedial decisions on criminal case excitation, a presentation to the person of charge, etc. are behind frameworks of the corpus delicti and are considered at awarding punishment taking into account the justice caused to interests and the rights of citizens of harm.

As attempt at a false denunciation cases when the corresponding message on a crime for whatever reasons does not get to the addressee are qualified. Preparation for a false denunciation is penal only in case of the mere preparation, provided ch. 3 items 306 UK the Russian Federation (i.e. to grave crime).

From the subjective party analyzed act is made with the express intent. The guilty person realises the social danger of the actions, knows about notorious lozhnosti informed data and wishes to make action in the form of a false denunciation. Deliberate character of fault is underlined by a guilty knowledge sign from what follows, that in case of honest mistake concerning reliability of informed data under item 306 UK the Russian Federation does not bear the person of the criminal liability.

Certain specificity is inherent in the false denunciation on affairs of private or private-public charge. As according to ch. 2 and 3 items 20 UPK the Russian Federation such criminal cases are initiated precisely under the statement of the victim or its legal representative, the subject of a false denunciation in similar cases will be either the victim, or its legal representative.

Dominating in a science and in practice the point of view of responsibility for the false denunciation made convicted on criminal case consists that the criminal liability does not come if the informed false data concern the ultimate fact and are finished to the addressee for the purpose of protection against charge. In other cases attraction convicted to the criminal liability for considered act is carried out in the general order.

At the same time it is necessary to distinguish false indications for which the convicted does not bear the criminal liability, and its indications in which the false denunciation connected with charge of obviously innocent person in committing a crime contains. In the latter case actions convicted come under to qualification under item 306 UK the Russian Federation in accordance with general practice, that answers position ch. 3 items 17 of the Constitution of the Russian Federation, according to which realisation of the rights and freedom of the person and the citizen (in this case rights of defence) should not break the right and freedom of other persons.

As the basic direct object of false witness the public relations providing normal activity of bodies of preliminary investigation, Office of Public Prosecutor, court, including on receipt maintenance in the order of tribunals of mathematical evidences act.

At drawing by a crime of harm the rights and legitimate interests of the victim - the participant of a corresponding kind of legal proceedings can speak about additional direct object - the public relations connected with maintenance of the rights and legitimate interests of the person in criminal or other legal proceedings.

The objective party of false witness consists in fulfilment of one of the actions provided by a disposition ch. 1 items 307 UK the Russian Federation: false witness's testimonies, the victim, the expert, the expert; the false expert's statement; obviously wrong transfer. The named actions differ the variety caused by the various status of participants of legal proceedings, the different maintenance and registration of spent legal proceedings, and are qualified as penal in case of their fulfilment during criminal, civil (including arbitration affairs), administrative and constitutional sudoproizvodstv.

For the decision of a question on attraction of the witness or the victim to the criminal liability for a summer residence of false indications it is necessary to consider possible presence at the interrogated person of the privilege from charge, differently not to avoid material breaches of the law, the rights and interests of the interrogated person.

Default at evidence owing to its character is necessary for carrying not to false witness, and to one of ways of refusal of evidence, the criminal liability for which is provided item 308 UK the Russian Federation. However in most cases such refusal is expressed in full and obvious unwillingness to give evidence on business.

False indications become penal in that case when they are received by the authorised official of body of preliminary investigation or court, and also are issued in proper order. Thus the fact of absence of the prevention of the criminal liability for false witness does not exclude responsibility as the victim, the witness, and also the expert and the expert are obliged to give truthful evidences without dependence from any circumstances. The same to the full can be extended and to the translator.

Without dependence from a kind of legal proceedings the translator admits its participant. For presence of the corpus delicti by the addressee of transfer there should be bodies of preliminary investigation or court. The false transfer, custom-made other organisations and establishments, does not attract the criminal liability.

Honest mistake of interrogated persons about reliability of their indications of the corpus delicti does not form. It is necessary to consider, that false testimonies can be a consequence incorrect or not enough full perception of those or other circumstances of an event. Besides, the expert's statement can be erroneous (false) in view of insufficient qualification of the expert, insufficient development of corresponding branch of scientific knowledge; transfer - in connection with bad knowledge of language. Representation of the debatable scientific conclusions also is not penal.

False witness can lead various, including heavy, to consequences. This and unreasonable bringing to criminal liability, up to condemnation of the innocent person, and contribution to leaving from responsibility of the guilty person, other consequences. They are not konstitutivnymi signs of analyzed act, but come under to the account at appointment as punishment court.

The false witness structure is formal in this connection the encroachment is considered ended from the moment of performance of the objective party - evidence, the conclusion or transfer realisation. Thus the moment of the termination of an encroachment is caused by a kind of legal proceedings and its stage.

All persons possessing witness immunity cannot concern subjects of false witness. Presence of the status of such person does not testify that the person actually is the perpetrator. In each concrete case it is necessary to check, whether the corresponding remedial status is correctly certain.

The Russian Federation is not provided by article 307 UK the criminal liability of suspected or convicted (defendant) on criminal case; the parties, the third parties and other interested persons - on civil (arbitration) and administrative business. However in the event that during the criminal trial the victim and the civil claimant are the same person responsibility for false indications is not excluded. Convicted can be involved in the criminal liability for false witness in case of fulfilment of actions on instigation to a summer residence of false indications other persons or at their interrogation as witnesses on an another matter.

The raised social danger of the qualified kind of false witness is defined by injury not only to interests of justice, but also the concrete person - the victim, and even in the event that such person has really committed a crime, but less heavy, than that of which fulfilment it false is convicted. At the same time the come socially dangerous consequences do not influence qualification of false witness, but should be taken into consideration at appointment as punishment court.

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

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

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

Pledge of correct qualification of the crime provided by item 306 UK the Russian Federation, at the first stage is its faultless otgranichenie from adjacent criminal actions, on the second - the analysis of elements of the corpus delicti for the purpose of qualification of act by corresponding part of item 306 UK the Russian Federation.

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), 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.

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 named criminally-legal interdiction.

Generalisation and the analysis of problems of a legislative regulation of item 306 and 307 UK the Russian Federation have allowed to make offers on change and addition of considered articles and to formulate their new author's editions.

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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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