On the definition of the concept of «a circumstance excluding the criminality of an act»

Abstract

Chapter 8 of the Criminal Code of Russia is called circumstances that exclude the criminality of an act. In this regard, the purpose of the study is to define the concept of circumstances that exclude the criminality of an act on the basis of clarifying those objective reasons (grounds) by virtue of which causing harm with the necessary defense and other manifestations of legitimate harm is not considered a crime. The designated goal was achieved as a result of the analysis of the norms of Russian, Russian and foreign criminal laws on the circumstances excluding the criminality of the act, and the provisions of the theory on the issue under study. The paper proves that the property of legality or illegality, usefulness or malice of an act that causes the death of a person or other harm is entirely formed by a set of factors external to the act and the actor. At the same time, it is emphasized that an act is not a specific concept in relation to the concept of circumstances excluding the criminality of an act. The optimal concept by which to designate circumstances that exclude the criminality of an act is the concept of situation. In this regard, under the circumstances excluding the criminality of the act, it is proposed to understand the situations, in the presence of which harm to the interests protected by criminal law, within and in compliance with the conditions specified in the norms of Chapter 8 of the Criminal Code of Russia, other federal laws and other regulatory legal acts, is lawful. It is proved that the absence of the corpus delicti used in practice (pr. 2 Part 1 of Article 24 of the Criminal Procedure Code of Russia) as a procedural basis excluding criminal proceedings in relation to the circumstances that eliminate the criminality of the act does not reflect the essence of the latter and does not stimulate the investigative bodies to establish them. In this regard, relevant proposals are being made.