The concept of criminal justice disclosed in Article 5 of the Code of Criminal Procedure. According to p. 56 of this norm, it covers the pre-trial and judicial stages of the criminal proceedings. Content notions of criminal justice make up a preliminary caseinvestigation, trial, and substantive resolution. One of the mandatory stages of the process is the qualification of a crime. Consider it in more detail.
The concept and stages of qualification of crimes
In the framework of criminal proceedings at the pre-trial stage, a legal identity is established between the signs of the offense and the composition of the act enshrined in the Criminal Code. This process is called qualification of crimes. Stages This activity is subject to certain laws.
This process takes place in time and is aimed at the selection of a specific criminal rule to be applied to a specific subject.
The question of the criteria for selection, quantity and content stages of crime qualification in criminal science is solved in different ways. Currently, a unified approach to this problem is missing.
Opinion V. N. Kudryavtseva
The correct qualification of crimes depends on the correct establish the actual circumstances of the case, a true understanding of the essence of the criminal law,determining the legal validity of the source, etc. In this case, these procedures are repeated several times. When establishing the identity of signs, there is a constant clarification of certain circumstances.
Meanwhile, as Kudryavtsev believes, the actions themselves do not form the content stages of crime qualification. They form only the prerequisites for them, i.e. the conditions by which the correct application of the law is ensured.
Immediate determination of a specific crime begins only after the end of the preliminaryactivities. She stands, according to Kudryavtsev, as a prerequisite for the correct qualification. The author connects the stages of qualification of crimes with the stages of criminal proceedings:
- Excitement
- Formulation and Charging.
- Drafting, approval of the indictment (conclusion).
- Proceedings in court.
- The review of the case on appeal, cassation instance.
It seems, however, that all these are not stages of determining the identity of the signs of the act and the composition of the crime, but only a listing of the stages of the process during which criminal offense qualification.
Opinion G. A. Levitsky
Certainly, the qualification of crimes asProcedural activity at various stages of the process has certain common features and is subject to specific laws. In this regard, the substitution of the notion “qualification stage” with the notion “stage of criminal proceedings” cannot be considered justified.
According to Levitsky, 4 should be singled out. stage of qualification of crimes in criminal law:
- Determination of the legal significance of the subjective and objective signs that characterize the committed act and the identity of the citizen involved in it.
- The choice of a specific criminal law stating the alleged corpus delicti, an explanation of the essence of the grounds forming it.
- Identification of the signs of the act and the composition of the crime.
- Consolidation of the conclusion in the procedural act.
According to some authors, the inclusion in the process of preliminary activity is unjustified. It forms only the prerequisites for the correct qualification, but is not in and of itself.
The concept of N. F. Kuznetsova
Kuznetsova also defines 4 stages:
- The establishment of a specific rule describing the characteristics of the composition of the act.
- Determination of the identity of legally significant criteria of a socially dangerous act to the characteristics of the composition, fixed in the norm.
- The answer to the question about the absence of grounds precluding the initiation of prosecution.
- The consolidation of the identity of legally significant criteria of a real socially dangerous action to the characteristics of the composition defined in the criminal law norm.
It appears, however, that qualification as the choice of the norm to be applied has been completed already at stage 1. The diagram does not reflect the process of this choice.
Characteristics of crime qualification
If the crime is obvious, then the choice of the norm andaccordingly, the qualification of the act can be carried out instantly, and the events are immediately reflected correctly. In this case, the latter in such cases do not change until the hearing of the case in cassation.
Instant recognition at which it is usedgeneralized characteristic of a typical object occurs in practice quite often. An experienced lawyer already in the course of familiarization with the plot of the case forms an idea of the composition of the act without a detailed comparison of the detected signs of a crime with the legislative norm.
However, when committing disguised,unobvious violations of the rules to be applied may be significantly complicated. It is rather difficult to establish whether a crime was committed, and if so, which one.
Alternative option
A rather interesting concept was proposed by B. A. Kurinov. He singled out the following stages of qualifying crimes:
- Identification of the most common signs of crime to establish the type of criminal relationship.
- Identify generic traits.
- Definition and comparison of all signs.
Meanwhile, A. I. Rarog points to the inexpediency of determining the type of relationship. On thistapa crime qualification carried out without prior coordination (althoughwould be a preliminary) specific rules with established circumstances. The author justifies this by the fact that the initiation of a case is possible only if there are sufficient data indicating signs of a crime. At the same time, a decision is made in which, in accordance with Part 2 of Article 146 of the Code of Criminal Procedure, the official indicates the article, part, paragraph, on the basis of which, in fact, production begins.
Generalization of practice
Analyzing the practical activities of the investigating authorities, we can formulate the most general qualification model, including:
- The formulation of the assumption that the eventtook place. The establishment of (at least approximate) signs of the object of encroachment and criteria of harm caused to him should be considered sufficient data indicating the presence of signs.
- The nomination of versions (private hypotheses) in accordance with the actual circumstances, that is, the definition of a group of related structures of compositions.
- Differentiation of adjacent structures, the choice of a specific rule, in accordance with which the crime is qualified.
Controversial moments
В рамках уголовно-правовой науки и в практике investigations formed the opinion that the qualification of acts must be carried out on the elements of the composition. In this case, there is no single approach to the choice of a specific element.
According to B. A.Kurinova, qualifications should begin with the definition of the object of encroachment. Other experts believe that the process does not obey the regulated rules at all. In practice, in some situations it is advisable to start qualification with defining the characteristics of a subject (for example, when investigating military and official crimes), in others - with the characteristics of an objective aspect, in the third - an object of encroachment (for example, when making an attempt on the life of an investigator, judge etc.).
It seems more appropriate to startqualification with identifying signs of the objective aspect of the act. It is the consequences dangerous for society, the tools used by the person, the means or method of committing an encroachment act as the basis for the emergence of the first stage of qualification - the formulation of versions.
A similar opinion is shared by Kudryavtsev.He points to the insignificant effect of first determining the form of guilt of a person, and then on the characteristics of a particular act that a citizen committed or wanted to commit.
Finally
The delimitation of encroachments by subjective criteria should be carried out on the basis of already determined objective features.
At the subsequent stages of qualification - withformulation of versions, the choice of a particular norm - the scheme of the process can be any. Signs that relate to different elements of the composition, can be used in a very different sequence. This will depend on qualifying circumstances.
