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§ 2. Unification of criminal legislations of Russia, Belarus and UkraiYOny in sphere of counteraction to criminal societies (criminal organizayotsijam)

In business of struggle against the organised crime in Russia, Belarus and on UkYOraine, including in its such form of display as creation of criminal societies (the criminal organisations), the great value has creation of the effective legal system which is not allowing criminals to avoid of responsibility.

Completely soyoglasny with V.Kvashisa's believing opinion, that corresponding ugolovnoyopravovye and others «norms should be uniform enough... And then prayovonarushiteli cannot choose for the activity of the country by a principle naiyomenshego risk or the greatest possible profit» 1.

As the Minister of Internal Affairs of Byelorussia V.V. Naumov has fairly noted: «regular practice of carrying out of consultations on voyoprosam unifications of legislative base and coordination of combined action on struggle against crimes of inter-regional character would be useful. After all distinctions in zakonodayotelstve constrain processes of formation of closer cooperation and vzaiyomodejstvija, receptions useful to investigation of crimes of the information» [150 [151].

Active practice of joint cooperation of law enforcement bodies of Russia, Belarus and Ukraine especially in frontier regions confirms tayokuju necessity.

So, at interaction of law enforcement bodies of the specified states variety of operatively-preventive actions and special operations, including under code names "Board", "Foreigner", "Channel", "Cordon", "Weapon", "Boundary", "Highway", "Caravan-avto", "Tobacco", "Excise" is spent.

Thus operation "Channel" was spent by law enforcement bodies BeYolarusi, Georgia, Kazakhstan, Tajikistan and Ukraine. It is as a result revealed almost 4 thousand narcocrimes, it is withdrawn over 1 thousand narcotics of 250 kg and

More than 1 thousand 200 units of fire-arms, it is opened more than 10 thousand 200 crimes.

As example of positive experience of cooperation can serve meroprijayotija on detention of members of the organised criminal group, spent in interaction of the Ministry of Internal Affairs of Russia, Belarus and Ukraine. This criminal formirovaniyoem in Ukraine had been made a number of crimes, including 8 murders. Some members of this criminal group tried to disappear outside of Ukraine, but as a result of combined action of employees of the Ministry of Internal Affairs of Ukraine and Belarus were zayoderzhany in to Orsha.

However at realisation operatively-razysknyh actions, sledstvenyonyh actions distinctions of existing legal systems, structures prayovoohranitelnyh bodies affect. Therefore the urgency of necessity of unification nayotsionalnyh legislations concerning crime control (including oryoganizovannoj) does not decrease.

At realisation of unification of the legislation, first of all, in sphere proyotivodejstvija the organised crime should proceed, first, from this, that the criminal society (the criminal organisation) is most obshchestvenyono the dangerous form of its display characterised by presence of groups of people, parayozitirujushchih at the expense of contradictions in the economic, political and social spheres which criminal activity is their basic source sushcheyostvovanija; secondly, application in this case a comparison method is glavyonym in the case in point decision.

«In comparative political science it becomes the main method of research... In itself contains already elemenyoty ways of the decision of this or that practical problem, includes positive knowledge for assumes transitions to the answer to a question...» 1.

However there would be methodologically incorrect a comparison of concrete norms considered in dissertational research Russian, Belarus and ukrayoinskogo criminal legislations «without other state influencing on

The decision of a considered problem »[CLII]. It is impossible to lose sight specific osoyobennosti and elements of this or that tradition of legal systems.

In the table № 2 elements of structures of crimes, predusmatriyovajushchih responsibility for creation of criminal societies (criminal organizayotsy) on UK are presented Russia, Belarus and Ukraine.

The comparative analysis of basic elements of structures of these crimes poyozvoljaet to reveal as general, their typical lines, and lines, characteristic only for national criminal legislations of the specified states.

The general are:

Object of an encroachment (legislations of the specified states in quality tayokovogo define the public safety);

Some signs characterising the objective party: activity on criminal society creation (the criminal organisation); a management of such criminal formations, a management of structural divisions, vhoyodjashchimi in the criminal society, the criminal organisation; participation in the criminal society, the criminal organisation;

Obligatory sign of the subjective party considered prestupleyony is the fault in the form of the express intent;

A number of the signs, characterising the perpetrator (the head preyostupnogo communities, the criminal organisation, their participant).

At the same time from table 2 it is visible, that a number of signs considered sostayovov crimes has essential differences.

First, the objective party of these prestupleyony essentially differs. If under the criminal legislation of Russia and Ukraine it consists in sozdayonii the criminal society (the criminal organisation) on UK RB it is expressed in activity on creation of the criminal organisation.

The table № 2

Corpus delicti elements Article 210 UK of the Russian Federation Article 285 UK of Byelorussia Article 255 UK of Republic of Ukraine
1 2 3 4
Direct object The public safety The public safety The public safety
The objective party 1. Creation criminal soyoobshchestva (criminal organiyozatsii)

2. Association creation oryoganizatorov, heads or other representatives organizoyovannyh groups

3. A management of the criminal society (criminal orgayonizatsiej).

4. A management entering into the criminal society (orgayonizatsiju) criminal strukyoturnymi divisions.

5. Participation in criminal soyoobshchestve (criminal organiyozatsii), participation in association of organizers, heads or other representatives orgayonizovannyh groups

1. Activity on creation of the criminal organisation

2. A management of the criminal organisation

3. A management entering into it structural podrazdeleyonijami

4. Participation in criminal oryoganizatsii in any other form

1. Creation criminal orgayonizatsii

2. A management such organiyozatsiej

3. Participation in criminal orgayonizatsii

4. Participation in the crimes made such organizatsi - to it

5. The organisation, a management or assistance to a meeting (meeting) of representatives criminal oryoganizatsy or the organised groups for working out of plans and conditions joint soversheyonija crimes, materialyonogo maintenance of criminal activity or coordination of actions of associations prestupyonyh the organisations or organizoyovannyh groups


1 2 3 4
The subjective party The express intent and spetsialyonaja the purpose - fulfilment heavy and especially grave crimes The express intent and spetsialyonaja the purpose - realisation preyostupnoj activity or sozyodanie conditions for it podderyozhanija and developments The express intent and spetsialyonaja the purpose - joint dejatelyonost on direct soyoversheniju heavy and especially tjazhyokih crimes
The subject 1. The organizer of the criminal society (criminal orgayonizatsii)

2. The head of the criminal society (criminal orgayonizatsii)

3. The participant criminal soyoobshchestva (criminal organiyozatsii)

4. The participant of association oryoganizatorov, heads and other representatives prestupyonyh groups

The special subject - the person using office poyolozhenie

1. The person who is carrying out activity on creation preyostupnoj of the organisation

2. The head of the criminal organisation

3. The participant criminal orgayonizatsii

The special subject - the person using office polyonomochija

1. The person who is carrying out activity on creation preyostupnoj of the organisation

2. The head of the criminal organisation

3. The participant criminal orgayonizatsii

4. The participant of the crimes made such organizatsiyoej

5. ’ the Person who is carrying out actions on the organisation, rukoyovodstvu or to assistance to a meeting (meeting) of representatives preyostupnyh the organisations or orgayonizovannyh groups


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Differently, if in the first case penal is rezulyotat criminal activity - criminal society creation (criminal orgayonizatsii) or creation of association of organizers, heads or others predyostavitelej the organised groups in the second case activity is punished, irrespective of its result.

Secondly, differ under the maintenance and the subjective parties of these preyostupnyh acts. The purpose of the crimes provided by item 210 UK the Russian Federation and item 255 UK of Ukraine, fulfilment heavy and especially grave crimes is. On UK RB (item 285) the special purpose of the criminal organisation is realisation prestupyonoj activity or creation of conditions for its maintenance and development.

Thirdly, essential differences are observed and on subjects of the specified crimes. So, unlike the criminal legislation of Belarus and Ukraine on UK the Russian Federation the perpetrator can be the participant of association organizatoyorov, heads and other representatives of criminal groups.

UK Ukraine assumes responsibility on ч.1 item 255 of the persons who are not participants of the criminal organisation, but participating in crimes, sovershaeyomyh such organisation. Besides, to the criminal liability as the executor comes under the person who is carrying out actions on the organisation, a management or sodejyostviju to a meeting (meeting) of representatives of the criminal organisations or organizovanyonyh groups.

Norms UK the Russian Federation and RB provide presence of a qualifying sign - committing a crime by the person using the official position (polnomoyochija). Differently, in ch. Z item 210 UK the Russian Federation and ch. Z item 285 UK RB is present spetsiyoalnyj the subject. In UK such qualifying sign is not present Ukraine.

The analysis of sanctions considered is criminally-rules of law resulted in § 3 chapters 2 of the present research.

One of ways of unification of the rules of law establishing criminal otyovetstvennost for creation of the criminal society (the criminal organisation, preyostupnoj groupings), is unification of the objective party specified dejayony. As the overwhelming majority of indicators was already marked by the competitor earlier,

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The objective party on UK Russia, Belarus and Ukraine coincide: activity on creation, a management, participation.

Such signs of the objective party, as «activity on sozyodaniju the criminal organisation» (UK RB), «criminal society creation (preyostupnoj the organisations)» (UK the Russian Federation and UK Ukraine) do not coincide. It is accordingly observed otliyochie and in the moment of the termination of a crime. On ch. 1 item 285 UK RB the moment of the termination of a crime is the beginning of the first actions on creation of the criminal organisations; on ch. 1 items 210 UK the Russian Federation and ч.1 with. 255 UK Ukraine - creation (formation) such preyostupnogo formations, that is a result of such activity.

Hence, under the Russian and Ukrainian criminal legislations the specified activity can be considered only as preparation or pokuyoshenie on the crimes provided by item 210 UK the Russian Federation and item 255 UK of Ukraine. OtYOmetim, that in this respect the criminal legislation of Belarus is more rigid rossijyoskogo.

Proceeding from available in Russia and Ukraine of judiciary practice on attraction of persons to the criminal liability for criminal society creation (the criminal organisation) and considering those difficulties which arise with proving of creation of such formation, will prove activity on creation criminal organiyozatsii even more difficultly.

In our opinion, at the formulation of signs of the objective party tseleyosoobrazno to use editions UK of Russia and UK Ukraine in which it is spoken about criminal society creation (the criminal organisation) as about ended t

Process.

We believe necessary to exclude from the formulation of articles 210 UK the Russian Federation and item 255 UK of Ukraine of the purpose of creation of the criminal society (the criminal organisation) since the purpose of creation of such criminal formations is designated in norms of the General chasyoti UK (item 35 UK the Russian Federation and item 28 UK of Ukraine). About expediency of instructions of the similar purpose in the criminal law it is spoken in § 2 chapters 1 of the present dissertational isyosledovanija.

The corpus delicti formulation can look as follows: «criminal society Creation (the criminal organisation), and is equal a management
It or structural divisions entering into it, their organizers, ruyokovoditeljami and other representatives of the organised groups ».

Other direction in respect of unification of criminal legislations RosYOsii, Belarus and the Ukraine providing responsibility for organised criminal activity, is unification of sanctions.

According to the competitor, the sanction of the item of item 210 UK the Russian Federations, 285 UK RB and 255 UK UkYOrainy should be unequivocally led to a uniform denominator. We believe, that as a reference point the sanctions provided by item 210 UK the Russian Federation, as naiboyolee full reflecting the raised degree of the social danger of these prestuyopleny can serve.

It is necessary to exclude possibility at founders, organizers, rukovodiyotelej and participants of the criminal organisations to use available difference in sanctions with a view of leaving from more strict liability. The establishment also typical sanctions [CLIII] is possible.

Norms about the criminal society (the criminal organisation) in UK the Russian Federation on the legal technics in separate lines surpass similar positions zayorubezhnogo legislations. So in quality kvaliyofitsirujushchego a sign official position use in UK Ukraine, in particular, is not provided. VmeYOste with that against some positions of the legislation of Belarus and Ukraine lacks of norms of the item of item 35 and 210 UK the Russian Federation are accurately shown.

Basic lack, in particular, is terminological not - definiteness of norms of specified articles. In UK the Russian Federations are used simultaneously two terms: criminal society and the criminal organisation which, following the letter of the law, an essence are equivalent. A similar situation both in the theory and in practice it is frequent priyovodit to undesirable mess.

But the most important thing, in concept of the criminal society (criminal organizayotsii) on UK the Russian Federation is absent qualitative definiteness which would give criteria of basic difference of the given form of partnership from others, first of all - from the organised group.

~ According to the author of dissertation, with a view of perfection criminal zakonodatelyo

stva about responsibility for creation of the criminal organisations, a management and participation in them taking into account legislative experience of Belarus and Ukraine it is represented to Russia expedient to bring in UK to the Russian Federation certain changes.

Part of 3 articles 35 UK the Russian Federation it suggested to state in the following edition:

«3. The crime admits made by the organised group if it is made by the steady group of persons, in advance consolidated with a view of soyovershenija several crimes or one crime demanding thorough training and organizational activity».

Part of 4 articles 35 UK the Russian Federation it suggested to state in the following edition:

«4. The crime admits made by the criminal organisation, esyoli it is made by the steady and rallied association of several persons (three and more) or several organised groups created for osushchestvyolenija of criminal activity with a view of reception of the illegal income».

To add item 35 UK the Russian Federation with the following the note:

«The note. Criminal activity in articles of the present code is understood as fulfilment of several crimes or one proceeding, consisting of several independent episodes, and also fulfilment of others dejyostvy, the specified crimes directed on preparation, their concealment, ukloneyonie from responsibility and maintenance of functioning of the criminal organisation.

Stability and unity signs it is believed expedient to open f in the Decision of Plenum of the Supreme Court of the Russian Federation «About judiciary practice on affairs about the crimes connected with creation and activity organiyozovannyh of groups and the criminal organisations».

So, such signs can testify to stability of association, as stability of its structure, close interrelation between its members, soglayosovannost their actions, a constancy of forms and methods of criminal activity, dliyotelnost its existence, in particular.

It is necessary to understand presence as unity at members of the organisation of overall aims, the intentions transforming this organisation in a single whole. Presence of the settled communications can testify to unity, organizational - also

F

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Administrative structures, financial base, uniform cash desk from payments from criminal activity, conspiracy, hierarchy of submission, uniform both rigid rules vzaimoyootnosheny and behaviour with sanctions for infringement of the unwritten charter criminal oryoganizatsii.

About necessity of acceptance of measures on perfection of the standard legal base regulating questions of struggle against the organised crime, govoyoritsja in the Instruction of the Ministry of Internal Affairs of Russia from March, 23rd, 2004: «Together with General proyokuraturoj the Russian Federation to make offers in the Supreme Court of the Russian Federation about carrying out of Plenum for judiciary practice generalisation on criminal cases about the crimes provided by item 210 UK the Russian Federation, and acceptances sootvetstvujuyoshchego the decision containing a legal estimation of borders criminal soobshchestyova, and also the signs which are coming under to proving» 1.

In the same place it is specified, that with a view of strengthening of struggle with organised prestupnoyostju it is necessary to increase initiative operative penetration in krimiyonalnuju environment for the purpose of preparation of anticipatory measures on revealing, working out, documenting and liquidation of the organised groups, the criminal societies specialising on kidnappings, vymogatelstvah, robberies and razbojyonyh attacks. Besides, in the instruction it is specified in necessity of concentration of efforts on deep operative penetration into criminal groups narkodelyotsov for revealing of organizers of narcobusiness, channels and ways of legalisation of narcoincomes. To provide operative cover of the enterprises and the organisations which are carrying out manufacture, storage, sale and transportation of narcotics and psychotropic substances.

For maintenance of efficiency of such activity it suggested to add chapter 8 UK the Russian Federation with article 371 of the following maintenance:

«Article 371. Performance of the special task under the prevention or disclosing of criminal activity of the organised group or the criminal organisation

1. Is not a crime the forced injury pravoohranjaeyomym to interests the person who according to the law carried out the special task, 1 See: the Instruction of the Ministry of Internal Affairs of Russia № 1 from March, 23rd, 2004 «About results of operatively-office activity of law-enforcement bodies and sluzhebno-fighting activity of internal armies of the Ministry of Internal Affairs of Russia in 2003 and problems for 2004»

i taking part in the organised group or the criminal organisation for the purpose of the prevention or disclosing of their criminal activity.

2. Rules of a part of first present article are not applied to the person, sovershivyoshemu especially heavy or the grave crime connected with an encroachment for a life or health of the person.

3. The person who has committed a crime provided by a part 2 nastojayoshchej of article, cannot be condemned to lifelong imprisonment, and nakazayonie in the form of imprisonment cannot be appointed to it for the term of more half of maximum term of imprisonment, statutory for it prestupyolenie ».

To add a part 1 item 61 UK the Russian Federation with point of the following maintenance:

«) fulfilment of crimes by the person as a part of the criminal organisation, kotoyoroe has voluntary ceased further participation in it and actively promoted disclosing and suppression of criminal activity of such organisation».

Article 210 UK the Russian Federation to state in the following edition:

«Article 210. Creation of the criminal organisation or participation in it

1. Activity on creation of the criminal organisation or a management preyostupnoj the organisation or entering into it organised criminal gruppayomi -

Are punished by imprisonment for the term from seven till fifteen years with shtrayofom at the rate to one million roubles or at a rate of wages or ino - go the income condemned for the period till five years or without that.

2. Participation in the criminal organisation or participation in made such orgayonizatsiej crimes -

It is punished by imprisonment for the term from three till ten years with the penalty at the rate to five hundred thousand roubles or at a rate of wages or other income condemned for the period till three years or without that.

3. Compulsion of the person to participation in the criminal organisation, connected with nayosiliem or with destruction or damage of property or under the threat soveryoshenija such actions, -

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It is punished by arrest for the term from three about six months or deprivation svoboyody for the term from three till six years.

4. The acts provided by parts of first, second or third present article, made by the person with use of the official position or a legal status, -

Are punished by imprisonment for the term from ten till twenty years with shtrayofom at the rate to one million roubles or at a rate of wages or inoyogo the income condemned for the period till five years or without that.

The note. The person who has voluntary ceased participation in criminal organiyozatsii or structural division entering into it or association organizayotorov, heads or other representatives of the organised groups and actively promoting disclosing or suppression of this crime, is released from the criminal liability if in its actions does not contain other structure preyostuplenija ».

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A source: Chernij Andrey Viktorovich. Criminal liability for the criminal society organisation (the criminal organisation) under the legislation of Russia, Belarus and Ukraine: the comparative analysis. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan - 2005. 2005

More on topic § 2. Unification of criminal legislations of Russia, Belarus and UkraiYOny in sphere of counteraction to criminal societies (criminal organizayotsijam):

  1. CHAPTER 3. Features of the criminal liability for the organised criminal activity and unification of criminal legislations of Russia, Belarus and Ukraine in sphere of counteraction to criminal societies (the criminal organisations)
  2. § 1. The retrospective analysis of institute of the criminal liability for oryoganizatsiju the criminal society (the criminal organisation) on zakonodatelyostvu Russia, Belarus and Ukraine
  3. § 1. Objective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine
  4. § 2. Subjective signs of structures of the crimes providing responsibility for creation of the criminal society (the criminal organisation) under the criminal legislation of Russia, Belarus and Ukraine
  5. 2.4. The comparative analysis and prospects of unification of the criminal legislation of member states ODKB in sphere of counteraction to terrorism
  6. §1. Features of the criminal liability of minors and the criminal policy in sphere of counteraction of juvenile delinquency
  7. Black Andrey Viktorovich. the Criminal liability for the criminal society organisation (the criminal organisation) under the legislation of Russia, Belarus and Ukraine: the comparative analysis. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan - 2005, 2005
  8. § 4. Problems of perfection criminal and ugolovnoyoispolnitelnogo legislations in the field of counteraction of plurality of crimes
  9. § 1. Protection of the child from criminal trespasses in history of criminal law of Belarus
  10. § 2. Features of the modern criminal legislation of the foreign countries regulating clearing of the criminal liability on affairs about crimes in sphere of economic activities
  11. the criminal case and criminal prosecution termination in connection with death of the person who are coming under to bringing to criminal liability, in the light of the presumption of innocence
  12. the Roman statute of the International criminal court and the general principles of the criminal liability for criminal infringements of human rights
  13. § 3. Responsibility of organizers, heads and participants preyostupnyh communities (the criminal organisations). The special bases osvoboyozhdenija from the criminal liability of these participants criminal formirovayony