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3.1. The False denunciation

The false denunciation is among crimes, responsibility for which fulfilment is established even in initial edition UK the Russian Federation 1996 As follows from §2 chapters 1 of the present work, this act was penal and under previous legislation.

At the moment of the introduction of the mentioned criminal law owing to item 306 UK the Russian Federation consisted of two parts and provided punishment for a false denunciation about committing a crime (ch. 1) in the form of the penalty at the rate from hundred to two hundred minimum wage rates or at a rate of wages or other income condemned for the period from one about two months, or obligatory works for the term from hundred eight-ten till two hundred forty o'clock, or correctional labour for the term from one year till two years, or arrest for the term from three about six months, or imprisonment for the term up to two years.

More the strict liability has been established for fulfilment of the false denunciation connected to charge of the person in fulfilment heavy or especially of grave crime or with artificial creation of proofs of charge (ch. 2). For the qualified denunciation one kind of punishment - imprisonment for the term up to six years was provided only.

The federal act from 08.12.2003 № 162-FZ «About modification and additions in the Criminal code of the Russian Federation» (further - the Law from 08.12.2003 № 162-FZ) changes the sanction ch. 1 items 306 UK the Russian Federation: punishment in the form of the penalty estimated in the minimum wage rates, is replaced with the penalty at the rate to hundred twenty thousand roubles, and a kind of the penalty which is coming under to calculation depending on the size of wages or other income condemned, - on the penalty for the period till one year.

Changes have concerned and ch. 2 items 306 UK the Russian Federation from which disposition the qualifying sign «with artificial creation of proofs of charge» has been excluded. The number of kinds of the punishment appointed by the considered part of item 306 UK the Russian Federation has extended also. So, the sanction began to provide the penalty at the rate from hundred thousand to three hundred thousand roubles or at a rate of wages or other income condemned for the period from one year till two years or imprisonment for the term up to three years.

Excluded from ch. 2 items 306 UK the Russian Federation the qualifying sign has found an embodiment in new norm - ch. 3 items 306 UK the Russian Federation, established responsibility for the acts provided ch. 1 or 2 items 306 UK the Russian Federations connected to artificial creation of proofs of charge. Thus, this sign became especially qualifying, that is more socially dangerous from the point of view of the legislator that was reflected and in the sanction which have fixed punishment in the form of imprisonment for the term up to six years.

From 07.03.2011 № 26-FZ «About modification of the Criminal code of the Russian Federation» in item 306 UK the Russian Federations have been again made by the federal act of change, however not such essential, as in 2003 So, from the sanction ch. 1 the bottom limits of punishment in the form of correctional labour and arrest have been excluded.

The federal act from 07.12.2011 № 420-FZ «About modification of the Criminal code of the Russian Federation and separate acts of the Russian Federation» (further - the Law from 07.12.2011 № 420-FZ) has excluded from the sanction ch.

1 items 306 UK the Russian Federation the bottom limit of punishment in the form of obligatory works, simultaneously having increased the top limit till four hundred eight-ten o'clock. Also number possible for appointment on ch. 1 considered norm of punishments has increased at the expense of forced hard labour for the term up to two years. The same kind of punishment has expanded the sanction ch. 2 items 306 UK the Russian Federation, but the top limit has constituted three years. The part 3 has replenished with punishment in the form of forced hard labour for the term up to five years.

Thus, the legislator has gone on a way of more detailed regulation of responsibility for a false denunciation that it is possible to greet only. However the taken measures are represented to us insufficient as named criminally-rule of law requires the further perfection. It is represented, that such activity should be based on corresponding istoriko-legal experience (see more in detail §2 chapters 1), first of all, regarding the further differentiation of the criminal liability.

The objective party of a false denunciation can be shown as in granting to competent bodies and officials of a false information, not directory on the concrete person, and data on the crime ostensibly made by the certain person. Under the current legislation stated (except for the named act which is connected to charge of the person in heavy or especially grave crime) for qualification of actions of the guilty person has no value, besides the account at awarding punishment. It is represented insufficient in this connection it is necessary to differentiate, in our opinion, responsibility for a false denunciation depending on presence in it of instructions on the concrete innocent person. Last circumstance testifies to the raised social danger as such act encroaches at once on two objects - interests of justice, on the one hand, both interests and the personal rights, - with another. The made observations are divided by a number авторов1.

The stated offer is expedient for realising by an establishment in ch. 2 items 306 UK the Russian Federation the raised responsibility for the false denunciation made concerning obviously innocent person. Responsibility for the acts provided ch. 2 and 3 operating editions of named article, following logic of the legislator and principles of designing of structures of crimes, it is necessary to fix in ch. 3 and 4 offered editions of item 306 UK the Russian Federation, and action ch. 1 item 306 UK the Russian Federation - to extend to cases of fulfilment of a false denunciation about a crime, the concrete person not connected with charge.

Solving a debatable question on responsibility convicted for a false denunciation in a case ogovora the innocent person, L.V.Lobanova suggested to qualify actions convicted on earlier operating item 129 (nowadays - item 1281) UK the Russian Federation. Understanding insufficiency of potential given criminally-rule of law, it has found a way out in designing of the separate corpus delicti providing responsibility as for ogovor of obviously innocent person, and cases of artificial creation convicted proofs of fulfilment of act by other person. As frequently ogovor is a protection frame from charge, punishment for it should be less strict, than for a false denunciation [260 [261]. Regarding a criminal liability establishment for ogovor obviously innocent person S.V.Smolin [262] adheres to the similar point of view.

A.S.Gorelik, arguing on expediency of the offer of L.V.Lobanovoj, fairly considers, that should be protected not only legitimate interests convicted on self-defence, but also interests of the persons who have suffered from ogovora. Referring to positions of item 51 of the Constitution of the Russian Federation, he notices, that condonation directly does not follow from this norm «for lie in a kind ogovora obviously innocent person. However it is appreciable, that in the given norms the state endows interests of justice, believing, that is more (at least, not less) the important values...» 1. Further on one bowl of scales of A.S.Gorelik puts interests of self-defence of the suspect, convicted (defendant), on another - interests of victims ogovora, making a choice in favour of convicted, the presumption of innocence and possibility following from it to be protected from charge by means of any lawful ways. As an example item 309 UK the Russian Federation according to which the convicted can be involved in the criminal liability for some ways of rendering of illegal influence on such participants of the criminal trial, as the witnesses who have sustained, experts, experts or translators (payoff or compulsion) is resulted. Basic difference of actions which Russian Federations enter into the objective party of item 309 UK, and ogovora obviously innocent person A.S.Gorelik sees that in the first case proofs existing in a reality can be deformed, and in a case ogovora proofs which actually did not exist at all [263 [264] are represented.

Let's dare to disagree with A.S.Gorelikom regarding arrangement of priorities of the rights and legitimate interests convicted and the victim. It is represented, that the current legislation, first of all, remedial, the rights convicted are protected sufficiently that it is impossible to tell about the victim. By actions convicted, made a false denunciation concerning the innocent person, it is damnified to not less valuable constitutional laws of the victim on advantage of the person, freedom and inviolability of person, protection of honour and kind имени1. In such situation, apparently, the false denunciation made convicted, has no relation to realisation of its right of defence and should be considered as penal act. Besides, it is represented illogical to consider as means of self-defence fulfilment convicted other crime.

In item 306 UK the Russian Federation does not contain instructions on body in which the false denunciation should be made. This circumstance not only causes fierce scientific disputes, but also creates difficulties pravoprimeniteljam, generates inconsistent investigatory and judiciary practice.

The designated problem can be solved in the various ways. So, I.V.Dvorjanskov suggests to add a disposition ch. 1 items 306 UK the Russian Federation instructions on the addressee of a false denunciation - bodies which are competent to excite criminal case [265 [266]. S.V.Smolin as a whole agrees With it, suggesting to open signs of the addressee of considered act by means of norm-definition which comes under to inclusion in the note to item 306 UK the Russian Federation [267].

In our opinion, similar addition will unreasonably make narrower a circle of persons which come under to responsibility for a considered crime. Research of questions of the criminally-legal characteristic of a false denunciation has shown, that the named act can be made as by means of a false denunciation direction directly in criminal prosecution body, and in other public authorities, obliged to transfer the message on a crime on jurisdiction.

Besides, the false denunciation can be extended through mass media etc. Under such circumstances instructions to the addressee in a disposition ch. 1 item 306 UK the Russian Federation or the note to given article is inexpedient.

At the same time distribution of a false denunciation concerning the concrete person through mass media is characterised bolshej by the social danger as the crime not only encroaches on two objects - on interests of justice, and also on honour and advantage of the victim, but also leads to public distribution of data, notorious lozhnost which is meaningly hidden and owing to it is unevident for an audience of this or that mass media. Considering the stated factors, it is obviously possible to add ch. 3 offered editions of item 306 UK the Russian Federation a qualifying sign «with use of mass media».

2 operating editions of item 306 UK the Russian Federation is established by a part the raised responsibility for the false denunciation connected to charge of the person in fulfilment heavy or especially of grave crime. It is necessary to notice, that the false denunciation, in particular such about which there is a speech to dispositions analyzed criminally-rule of law, frequently leads to heavy consequences, for example, in the form of death of the person as a result of the suicide the false denunciation about fulfilment by the person heavy or especially grave crime (murders, rapes etc.) became which reason; to such consequence, as the long maintenance of the innocent person under guards in which course the victim of the false denunciation can get heavy diseases; to other heavy consequences.

It is thought, that such actions lzhedonoschika testify to the raised social danger and require a corresponding qualifying sign - «the entailed heavy consequences» which is expedient for including in ch. 3 offered editions of item 306 UK the Russian Federation.

Operating edition allows to consider this sign only at awarding punishment.

In case the guilty person will inform about notorious lozhnosti a denunciation after its reception by the addressee, obosnovanno to speak about active repentance which is one of the bases of clearing of the criminal liability. According to item 75 UK the Russian Federation for application of this basis is required, that the person has committed for the first time a crime of small or average weight, after committing a crime has voluntary pled guilty, promoted disclosing and investigation of this crime, has indemnified a loss or has otherwise smoothed down the harm caused by this crime, and owing to active repentance has ceased to be socially dangerous. Thus the person who has committed a crime of other category, can be released from the criminal liability only in the cases specially provided by corresponding articles of Special part UK the Russian Federation.

With reference to item 306 UK the Russian Federation turns out, that on the basis of item 75 UK the Russian Federations can be released the persons who have committed exclusively crimes of small or average weight, that is the acts provided ch. 1 and 2 considered articles. This approach of the legislator is correct and quite logical.

In another way there is a situation with ch. 3 items 306 UK the Russian Federation in which responsibility for grave crime is established. At the moment the bases for clearing of the criminal liability at active repentance of the person who have made the named encroachment, by the criminal law it is not provided.

At the same time such bases are provided in a number of articles UK the Russian Federation. So, according to notes to item 126, 1271, 205, 206, 208, 222, 275, 291, etc. the persons who have committed corresponding crimes, the heavy concerning a category can be released.

Following logic of the legislator, the similar note is expedient for providing and in item 306 UK the Russian Federation. Apparently, public advantage of bar of claim by lapse of time of condemnation of the innocent person on the basis it is artificial the created proofs of charge obviously more, rather than from punishment of the person, dared to make a similar false denunciation, especially in a case when the innocent person is condemned and serves time in the places of confinement, and lzhedonoschik only it is involved in the criminal liability.

Besides, it is obviously necessary to item 306 UK «to bring the Russian Federation into accord» with closely interconnected with it item 307 UK the Russian Federation in which there is a note containing the considered special basis of clearing of the criminal liability. Thus, in our opinion, such note should be applicable only at a stage of check of the message on a crime as item 144-145 UPK the Russian Federation, that is before acceptance of the remedial decision on criminal case excitation. One more condition sees obligatory, not dependent on the discretion pravoprimenitelja character of condonation. Other approach, in our opinion, will inevitably negatively affect efficiency of application of the note as it will not possess sufficient stimulating potential.

Generalisation of the stated reasons concerning legislative regulation of item 306 UK the Russian Federation and the questions connected with it allows to offer de lege ferenda new edition of the considered article which text is resulted in the appendix № 1.

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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

More on topic 3.1. The False denunciation:

  1. §3. Problems of a legislative regulation of the criminal liability for a false denunciation and false witness and ways of their decision
  2. §3. Foreign experience of a regulation of responsibility for a false denunciation and false witness
  3. §2. History of development of the legislation on the criminal liability for a false denunciation and false witness
  4. § 3.2. Qualifying signs as means of differentiation of the criminal liability for the false denunciation and false witness under the legislation of Russia, the countries of continental Europe, and also the USA
  5. Chapter 3. Problems of qualification and a legislative regulation of a false denunciation and false witness
  6. Chapter 2. The criminally-legal characteristic of a false denunciation and false witness
  7. §1. The False denunciation and false witness in system of crimes against public justice
  8. §1. Social conditionality of an establishment of criminally-legal interdictions for fulfilment of a false denunciation and false witness
  9. Chapter 1. Is social-legal preconditions, historical and foreign experience of an establishment of the criminal liability for a false denunciation and false witness
  10. § 3.1. Designing of sanctions for the basic structures of the false denunciation and false witness under the legislation of Russia, the countries of continental Europe and the USA
  11. §2. The Criminally-legal characteristic of a false denunciation
  12. §1. Qualification and otgranichenie a false denunciation from adjacent crimes