<<
>>

treatment of institute of an error in the criminally-legal doctrine of the states of the romano-German legal family

The error theory in the criminally-legal doctrine of Germany where, since the end XVIII - the beginnings of XIX centuries, the close attention was given extremely to the given problematics is most developed.

Earlier references to A.Bernera, K.Bindinga, H.Gelshnera's works, R background Gippelja, have been made by E.Kolrausha, K.Rejna, A.Fejerbaha, G.Eberlina devoted to questions of an error. It is not casual, as and is standard corresponding positions have started to be formed in the German criminal law, made considerable impact on process of formation of the European criminal legislation of the countries of the romano-German legal family. It concerns also the Russian criminal law, influence on which development of the German right was rather essential.

And during the subsequent periods of development of criminally-legal thought German scientists occupied a leading position in research of a problem interesting us. Therefore consideration in the given section of work is expedient for constructing on the generalised analysis of the theory of the error developed in the German criminally-legal doctrine [199], and also on the reference to criminal law of some the states - the former union republics (Belarus, Kazakhstan, Ukraine).

G ovorja about difference of the legal error from actual, experts notice, that the predominating moment of their differentiation is that the first influences the general legal estimation; and the second is always an error in corpus delicti definition, it concerns, basically, sobytijnyh the reasons. The error in law, besides, it is necessary to distinguish from errors rather sobytijnyh the bases excluding responsibility.

K.Kjul concerning a problem of errors notices, that the criminal law provides two kinds of errors. The first, named in § 16 UK Germany, - an error concerning actual facts; the second (§ 17 UK G ermanii) - an error in an interdiction. As object of the first act actual about -

stojatelstva acts (that is it is formed in an actual plane); its basic consequences - an exception of punishability in the absence of intention (when there is a situation of insuperable ignorance) in situations of fulfilment of a deliberate crime and responsibility for careless causing (at predusmotrennosti that the law) in case of surmountable ignorance. As object of the second kind of an error - errors in an interdiction - illegality of act acts. Thus, it is considered in a legal plane. Thus in the absence of illegality comprehension if such absence it is impossible to warn, avoid, responsibility excludes - ся1.

The error in an interdiction (or an error rather dozvolennosti actions) "is displayed" on three subspecies: an error concerning interdiction existence; an error concerning existence or borders of the basis excluding responsibility; an error in legal qualification.

Error in an interdiction without dependence from that, it was possible to avoid it or not, does not concern intentions of the criminal. In other words, if it was surmountable, the person comes under to responsibility for a deliberate crime, the guilt form does not change, as in many criminal laws of other states, on what the attention was already paid.

The error of the first kind is shown that the criminal, despite full knowledge of the facts wrong (that is unlawful) behaviour, does not know, that it is illegal.

For example, the person writes down telephone conversation, not having informed the partner about presence of the corresponding device, thus think, that it can be illegal, at all do not come to to it mind. At the same time punishability of similar behaviour is established § 201 UK Germany («Infringement of confidentiality of conversation») which says: «(1) Imprisonment for the term up to three years punishes the one who is illegal: 1. Writes down on the tape recorder confidential, not intended for other persons, the information...».

Other example: the person has organised a public lottery for the charitable purposes, but has no representation that the permission for this purpose is required. However, similar act is provided § 287 UK («not Resolved organisation of a lottery or draw»): «(1) Who without the official permission will organise public lotteries or draws of movable or immovable subjects... It is punished.».

Someone tempts the 15-year-old girl, knowing about its age, but considers the actions resolved whereas punishment for them is established § 182 «Sexual abusings concerning minors» UK: «(1) Person who has reached of eighteen years who wrongfully uses the person more youngly sixteen years in such a manner that it: 1. Undertakes sexual actions in relation to this person.».

If errors are inevitable, their presence excludes fault (ch. 1 § 17 UK («an error in an interdiction»)). However in the resulted examples of the person can avoid the errors, and their actions should be characterised not only as illegal and corresponding to the corpus delicti, but also guilty, and free (independent, from the point of view of free will). If there was an error which in most cases could be prevented, the fault is not excluded, the person comes under to punishment. At the same time thus probably facultative (voluntary) mitigation of punishment agrees ch. 2 §17 UK with a support on positions ch. 1 § 49 «Special extenuations, statutory».

As such sight at the legal error that is as on the basis for an exception or mitigation of punishment, in theory of law is not conventional is marked in the literature. Thus in a science the opinion prevails, that the error in law only then can be taken into consideration and be the extenuation when it is inevitable and for this reason it is necessary for considering. The one who had no possibility to receive knowledge about ka -

і

Someone the standard document, that cannot be responsible for the actions. It makes them without malicious intent and should not be punished.

But there is rather disputable a moment as the error which it was possible to avoid, influences fault (the guilt form). In the criminally-legal doctrine are formulated (with variety of transitions and nuances in separately taken cases) two opposite points of view known under names «the intention theory» (or «the intention theory») 1 and «the fault theory».

«The theory of intention (intention)» sees the nature of crime in conscious "revolt" against norm and recognises fault of the subject only in the event that it operated with illegality comprehension that admits them responsibility compulsory condition for sodejannoe. In the absence of such comprehension the person cannot be punished for fulfilment of a deliberate crime [200 [201] [202]. Supporters of the given sight in resulted above three examples would come to a conclusion, that anybody from the listed persons cannot be recognised by guilty as they had no intention, and "negligence" concerning knowledge of the law cannot be punishable.

Unlike this position apologists «the fault theory», become to Germany during the post-war period prevailing, believe, that level of awareness on illegality is not a necessary condition and is not obligatory for a fault establishment. With reference to the examples resulted above they have concluded, that persons in any case should bear punishment, though also softer in comparison with those to whom it was known zapreshchennost for the law of corresponding actions.

And the legislator, and Supreme Court G ermanii have supported the fault theory. As it is marked in the literature, one of decisions became turning point

-e

The big Senate about criminal cases from 18.03.1952

SHmidthojzer, one of supporters writes «theories of intention (intention)», that presence or absence of an offence at committing a crime lays in a difference in the points of view on guilt which causes absolutely other punishability; never only knowledge of fulfilment of corresponding actions by the person can be considered as deliberate действие1.

According to representatives of "the fault theory», value of an offence (that is conscious law-breaking, awareness on an interdiction) for fault is overestimated. Undoubtedly, the one who meaningly breaks the law, the one who breaks the law on ignorance attracts on itself(himself) the big fault, than; but the last does not exclude fault. At the same time supporters of "the fault theory» do not exclude possibility of reduction of punishment. However, they notice, that responsibility softening at the ignorance of law is not obligatory.

For example, if the person uses exploiter ways of usury (§ 291 UK [203] [204]) or subjects to violence of children (§ 225 UK [205]), that is breaks fundamental social and ethical standards, its fault does not decrease, even if he did not know about offence fulfilment (in other words, has not been informed on presence of the corresponding criminal law).

Thus, according to supporters of "the fault theory», not in disobedience (insubordination) to norm, not available or absence of awareness on illegality the basis for deliberate action, and that the criminal does not consider interests of other persons or общества1 lays. So, G.Shtra-tenvert specifies, that the question on knowledge or interdiction ignorance dares by explanation of "comprehension by the subject of corresponding general values» [206 [207] [208]. Such approach is close to understanding of fault in the Russian criminal law as in this case it is a question, as a matter of fact, of comprehension by the person of the social danger of made act, to its harm for interests of the person, a society, the state, but not about illegality comprehension sodejannogo.

At the same time and some supporters consider «fault theories», that it is not enough for responsibility only comprehension by the person of the social danger or immorality of act made by it. So, K.Roksin notices, that for awareness on illegality there is not enough understanding of social harm or immorality of the behaviour. Far not all unworthy actions are forbidden (for example, in the field of sexual behaviour or a competition). Besides, social and moral estimations in a pluralistic society bear in themselves a lot of relativity, therefore the law cannot rely completely on them, and should be applied there only where the criminal has meaningly ignored legal interdictions and requirements. Nevertheless, comprehension of social harm or immorality of own behaviour is instructions that was possible

-e

To prevent the committed error in an interdiction.

Therefore § 17 UK («the Error in an interdiction») does not give to the ignorance of law of the status of the circumstance always excluding responsibility, or, on the contrary, circumstance, in any way on it not influencing.

Thus, the permission of situations of an error in an interdiction differs in the German criminally-legal doctrine variety, complexity and absence of the uniform approach. As marks A.E.Zhalinsky, «positions of this sort differ a variety of criteria of allocation of separate situations and arguments. By the nature of things it is very sensitive problematics demanding the analysis of details, up to, possibly, to a situational estimation of mental condition of the subject» [209].

Here again pertinently again to return to the conclusion already made above, concerning error problems in foreign criminal law. This conclusion about otsenochnosti its decisions and an assumption enough the wide judicial discretion.

The error concerning punishability of made act is not considered as the circumstance influencing responsibility. The error in an interdiction, connected with qualifying circumstances if thus illegality of the basic action to the convicted is known, is estimated according to positions § 17 UK.

In connection with the legal error analysis (errors in an interdiction) original enough relation German ugolovnopravovoj the doctrine and judiciary practice to so-called «a dividend to offences» is of interest. The similar situation develops when within the limits of one illegal activity the person commits various crimes, about zapreshchennosti one of which he is informed, and another carries out on ignorance. The second situation can be regarded as an error in an interdiction. Courts, as a rule, do not recognise divisibility.

So, the criminal who has sold stolen museum pieces abroad; knowing, that theft is wrongful act, but not suspecting, that export of such subjects is punishable act, has been condemned by court for both crimes. The court has not seen in its action of an error in an interdiction, having specified, that the person knew about illegality of theft, therefore should refuse this action which have entailed the further illegality of its behaviour. Similarly, that is for fulfilment of two crimes, the person who had sexual relations with the stepdaughter has been punished. To it have made not only a crime provided § 174 UK («Sexual abusings concerning sponsored»), but also simultaneously the act specified in § 173 UK («Cohabitation between relatives»). The court has not seen in its actions an error in an interdiction though the criminal did not know, that its actions can be qualified as an incest [210].

At the same time in the literature other sight at such situations is stated also. Some authors notice, that such approach contradicts a fault principle. If the person has made wrongful act "And", it yet does not say that the person Would know about a possible crime or could about it знать2. Undoubtedly, following logic of the German legislator reflected in § 17 UK, with this position it is necessary to agree.

Thus, all errors in an interdiction (errors rather dozvolennosti actions) are similar that the criminal makes mistakes in concrete situations. The reasons on which he has decided to make a mistake in an interdiction, can differ very strongly from each other. The estimation allows to do by court of these reasons a conclusion about, whether they were inevitable, or the person could avoid them.

The factual error as it was already marked, lays in an actual plane, namely - in a plane of structure of act, on what is directly specified and in the law (§ 16 UK). The circumstance concerning structure of act concerning which there can be an error, is understood as the sign legislatively defined in corresponding norm which are representing itself as the objective or subjective characteristic of behaviour, recognised pre -

3

stupleniem.

In the German criminally-legal theory it is allocated three versions of the factual error - in object (subject), in act, in causality.

The error in object is understood, basically, the same as and in the Russian criminal law. At equivalence of objects the error of value has no (we will recollect a traditional example: instead of A it is killed V). At neravnotsennosti objects (intended to encroach on less significant object, and has actually harmed more valuable) responsibility comes for careless causing.

At an error completed crime, as a rule, is seen in a subject if the equivalent object of an external world suffers. But at the specific intent directed on a concrete subject, sodejannoe it is qualified as attempt at a desirable subject and careless injury to other subject. For example, as a result of error the person destroys one subject instead of other intention constituting object [211].

To error in actual facts of made act, actually, also it is devoted § 16 UK. Absence of knowledge of such circumstance excludes intention. The erroneous perception of circumstance as sign of the act pursued under softer law, attracts punishment for deliberate fulfilment of act under softer law. To the given version carry also an action deviation (shot at one, has missed and has got to another) [212 [213] [214] which the majority of authors does not admit the Russian doctrine a factual error version. At an estimation of such situation of opinion disperse. One authors see here the ended murder of a victim which intended to take life the guilty. Others see cumulative offences: attempt at murder of the person which intended to take life guilty, and the negligent homicide of a real victim. This

-e

Judiciary practice adheres to a position also.

The error admits essential if excludes intention of the person causality. For example, in a situation when the child have dumped from the bridge, but it has not sunk, and has died (for other reason - A.P.), the error in causality was

It is recognised by insignificant.

As to doktrinalnyh workings out of the theory of an error in criminal law of Belarus, Kazakhstan and Ukraine special specificity at their analysis it is not seen that speaks long coexistence of these republics and Russia within the limits of the uniform state and in the general legal space. Also scientific workings out, including in jurisprudence sphere that causes unity or, at least, similarity of sights at many criminally-legal institutes closely intertwined. The attention in the doctrine of all named states where it is developed and within the limits of research of the subjective party of a crime, and samostojatel - но2 is paid to the error theory.

The concept of the error presented in the criminally-legal doctrine of the named states, as a rule, is treated as incorrect (or nepravil - 1 noe) representation about legal or actual signs of perfect act and its consequences or as error concerning these обстоятельств1. So, A.M.Shulga and V.I.Pavlikovsky define an error (pomilku) as «невірне ujavlennja individuals about юридичні that фактичні властивості vchinjuvanogo суспільно nebezpechnogo діяння» (incorrect representation of the person about legal and actual properties of perfect socially dangerous act) [215 [216] [217] [218].

Such understanding of an error predetermines allocation of its two principal views - legal and actual which definitions too, as a rule, specificity do not differ. At the same time some approaches to a formulation of concept of this or that version of an error are represented not absolutely exact. So, A.A.Primachenok writes, that the legal error -

-e

This error of the person about legal essence of a consequence of act. First of all, as it is represented, the legal error is based on error concerning legal essence of the act from what also incorrect representation about its consequences already follows. Consequences cannot undertake anywhere, they are generated by act. Accordingly, the error in its essence attracts also an error in legal effects.

In this connection the most exact the definition offered by N.A.woman's though it and mismatches our representation about the given phenomenon sees, but is traditional enough for criminal law of the named states and Russia: «the Legal error is an error of the person concerning illegality and legal consequences of the

4

Acts ».

The same as and in the Russian criminally-legal doctrine, in the theory of the specified countries within the limits of legal and the factual error the subspecies which circle does not differ an appreciable originality are allocated.

Allocating in system of the legal error its such versions as an error in illegality (zapreshchennosti the criminal law) acts, «an imaginary crime», an error in qualification and punishability limits, a number of authors pays attention to necessity of giving of property oproverzhimosti of a presumption of knowledge of the law (though a presumption, basically, and are assumed by its possibility oproverzhimosti, but in the named states it too is perceived actually as a legal axiom). In this connection A.A.Primachenok notices, that, estimating an error situation in illegalities, courts usually are guided by the anachronistic thesis: «the ignorance of law does not relieve from responsibility», that, according to the author, does not do by it чести1.

At the same time the opposite opinion connected with strict adherence to a principle «ignorantia legis non excusat» and negation possible oproverzhimosti presumptions of knowledge of the law [219 [220] [221] expresses also. As arguments of such position authors allocate, first, the maintenance of the intellectual moment of the fault which is not including comprehension of illegality of made act; secondly, fastening in position Constitutions about

-e

The volume, that the ignorance of law does not relieve from responsibility. Our relation to the given question is stated above.

Within the limits of the factual error its traditional versions are allocated, as a rule. Approaches to a criminally-legal estimation sodejannogo, basically, are similar to representations of the Russian authors. It concerns and debatable aspects of a problem.

At the same time in the criminally-legal theory of the named states, undoubtedly, there are also specific positions on some question, connected with the error analysis. It is connected not only with features of legislative approaches which are expressed, however, extremely slightly, but also with doctrine development in its corresponding part. So, for example, O.D.Komarovym representing the Ukrainian science, develops classification of errors extensive enough and representing research interest in object. It is offered to them to carry out it on the different bases: depending on the maintenance (zalezhnu від змісту) - in identity of objects, in their qualitative and quantitative characteristics; depending on object level (for рівнем about ' ¾ktu zlochinu) - in patrimonial and direct object; Depending on value, which the legislator gives to direct object of a crime (for znachennjam, a yak zakonodavets nada є bezposerednomu about ' ¾ktu at конструюванні to a warehouse zlochinu) - an error in the basic, additional or additional facultative object [222]. Basically, so detailed classification is capable to facilitate process of mastering of the given question and practical application of corresponding positions.

Thus, having considered theoretical approaches to consideration of an error, its kinds and values in criminal law of the foreign states, it is possible to come to following conclusions.

In the European criminally-legal science process of research of questions of a subjective error of the beginnings actively to be carried out in the end of XVIII - the beginning of XIX centuries the error theory has received For so long period, undoubtedly, deep working out. Studied doktrinalnye the positions analysed on the basis of generalisation of works of German lawyers, testify, that the error in foreign criminal law always contacted fault. It concerns its both kinds which were traditionally allocated also with foreign researchers, - legal and the factual error.

At the analysis of consequences of the legal error consisting in ignorance by the person of the corresponding criminally-legal interdiction, researchers discussed concerning possibility of change of the form of fault at its presence. In the German criminally-legal doctrine with reference to the named problem have been formulated (with variety of transitions and nuances in separately taken cases) two opposite points of view known under names «the intention theory» (or «the intention theory») and «the fault theory».

Representatives of the first saw the nature of crime in conscious "revolt" against norm and recognised fault of the subject only in the event that it operated with illegality comprehension that admitted them responsibility compulsory condition for sodejannoe. In the absence of such comprehension the person cannot be punished for fulfilment of a deliberate crime. Opposing changes of the form of guilt in such situations, they believed, that "negligence" concerning knowledge of the law cannot be punishable.

According to representatives of "the fault theory», value of an offence (that is conscious law-breaking, awareness on an interdiction) for fault is overestimated. Undoubtedly, the one who meaningly breaks the law, the one who breaks the law on ignorance attracts on itself(himself) the big fault, than; but the last does not exclude fault. At the same time supporters of "the fault theory» do not exclude possibility of reduction of punishment. However, they notice, that responsibility softening at the ignorance of law is not obligatory.

In general the sight at the error in law as on the basis for an exception or the mitigation of punishment, received reflexion in criminal law G er - manias and of some other states, in the theory of the German right remains disputable enough. Thus in a science the opinion prevails, that the error in law only then can be taken into consideration and be the extenuation when it is inevitable.

In the criminally-legal theory it is allocated three versions of the factual error - in object (subject), in act, in causality. Absence of knowledge of the corresponding actual fact excludes intention. The erroneous perception of circumstance as sign of the act pursued under softer law, attracts punishment for deliberate fulfilment of act under softer law. To the given version in the theory of German criminal law carry also an action deviation (shot at one, has missed and has got to another) which the majority of authors, as is known, does not admit the Russian doctrine a factual error version. At an estimation of such situation of opinion disperse. One authors see here the ended murder of a victim which intended to take life the guilty. Others see cumulative offences: attempt at murder of the person which intended to take life guilty, and the negligent homicide of a real victim.

As to doktrinalnyh workings out of the theory of an error in criminal law of Belarus, Kazakhstan and Ukraine special specificity at their analysis it is not revealed that speaks long coexistence of these republics and Russia within the limits of the uniform state and in the general legal space. Also scientific workings out, including in jurisprudence sphere that causes unity or, at least, essential similarity of sights at many criminally-legal institutes closely intertwined.

Approaches to concept, kinds of an error, a criminally-legal estimation sodejannogo at its presence, basically, are similar to representations of the Russian authors. It concerns and debatable aspects of a problem.

At the same time in the criminally-legal theory of the named states, undoubtedly, there are also specific positions on some question, connected with the error analysis. A number from them is considered in work.

<< | >>
A source: Prokhorov Alexander Jurevich. ERROR INSTITUTE In ROMANO-GERMAN CRIMINAL LAW: KOMPARATIVISTSKY And TEORETIKO-APPLIED ASPECTS. The dissertation on competition of a scientific degree of the master of laws. Krasnodar, 2014. 2014

More on topic treatment of institute of an error in the criminally-legal doctrine of the states of the romano-German legal family:

  1. CHAPTER 2. ERROR INSTITUTE In the CRIMINAL LEGISLATION And the CRIMINALLY-LEGAL THEORY of the COUNTRIES of ROMANO-GERMAN of the LEGAL FAMILY
  2. formation and development of institute of an error and its theoretical substantiation in the romano-German criminal law
  3. § 3. Custom in legal systems of the German subgroup of the romano-German legal family
  4. Legislative approaches to a regulation of institute of an error in the romano-German criminal law
  5. § 2. Custom in legal systems of a Romance subgroup of the romano-German legal family
  6. CHAPTER 3. MODERN UNDERSTANDING of INSTITUTE of the ERROR In the RUSSIAN CRIMINALLY-LEGAL DOCTRINE And PROSPECTS of ITS LEGISLATIVE REGULATION
  7. § 1. The custom theory in the romano-German legal doctrine
  8. FILATOVA ULJANA BORISOVNA. INSTITUTE of the RIGHT of the JOINT PROPERTY In ROMANO-GERMAN COUNTRIES of the LEGAL FAMILY (Germany, Austria, Switzerland, France And Russia: rather-LEGAL RESEARCH). The dissertation on competition of a scientific degree of the Doctor of juridical science. Moscow - 2015, 2015
  9. § 4. Custom in legal systems of the Scandinavian, Latin American, African and Far East subgroups of the romano-German legal family
  10. § 1. MODELLING OF THE RIGHT OF THE JOINT PROPERTY IN RUSSIA AND ROMANO-GERMAN COUNTRIES OF THE LEGAL FAMILY
  11. Prokhorov Alexander Jurevich. ERROR INSTITUTE In ROMANO-GERMAN CRIMINAL LAW: KOMPARATIVISTSKY And TEORETIKO-APPLIED ASPECTS. The dissertation on competition of a scientific degree of the master of laws. Krasnodar,,
  12. features of legal regulation of application of the electronic information and electronic data carriers on ugolovnoprotsessualnomu to the legislation of the states of the romano-German and Anglo-American legal system
  13. § 1. THE BASIC DIFFERENCES OF THE RIGHT OF THE GENERAL JOINT PROPERTY FROM THE RIGHT OF THE GENERAL COMMON PROPERTY IN ROMANO-GERMAN COUNTRIES LEGAL FAMILY
  14. § 2. It is criminally-right protection right also freedom of the patient in system of the romano-German right
  15. 2.4. Features of the romano-German legal system.
  16. features of the romano-German legal system.
  17. the criminal legislation of the countries of the romano-German legal system
  18. Varjas,. the state in the romano-German legal system / the Dissertation, 2003
  19. Chapter 1. LEGAL REGULATION of INSTITUTE of the FAMILY And MARRIAGE In the RUSSIAN FAMILY LAW
  20. KICHA MARIA VJACHESLAVOVNA. CUSTOM AS the RIGHT FORM In ANGLO-SAXON And ROMANO-GERMAN LEGAL FAMILIES: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2015, 2015