Право/ 5. Уголовное право и криминология

C.e.s. Spektor L.A.

South – Russian state university of economics and service, Russia, Shakhty

The classification of crimes in the sphere of realization of justice.

The problem of classification of crimes against justice was controversial at the period of validity of the Criminal Code (CC) of RSFSR of 1960, when in it first in soviet legislation the independent chapter called “The crimes against justice” was introduced. And it’s the same nowadays. Its importance, as it is correctly stressed in literature, consists in the fact that “the classification of any events and subjects serves as the method of detection of the greatest quantity of objectively existing ties and relationships in the investigated object of reality”. Without any doubt it helps to ascertain not only priorities, but also contributes to deeper penetration into the essence of systematic interconnection of problems, determination of consequence of acceptance of practical decisions. Classification helps to bring together the diversification of the structure of studied objects to comparatively small amount of transformations, to reveal the initial units of analysis and to work out the system of appropriate concepts and terms; to find out stable signs and relationships, to disclose new ties and dependencies between already known objects, fixing this way natural bonds between classes of objects and the aim of determination of the place of the object in the system, which points out its characteristics.

Consequently, the classification is the most important operation in the scientific perception, the basis of the process of regulating of knowledge, as well as it represents the system of division and differs by definite qualities: a) the sequence of division made on the basis of signs, essential for solving the raised problem; b) direction to such division of subjects into groups, in order to make it possible to judge its qualities among the classifications, c) capability for further processes of formalization.

The main method of classification is taxonomic division, the essence of which consists in making separation in volume of divided concept of subclasses, which are the volumes of new (specific relatively to initial) notions from the point of view of certain characteristics, called the basis of division. It’s also used the dichotomic division, i.e. division of the whole into two parts and measurelogical division, characterizing partitioning the notion about the subject in type “the whole – the part” in aspect of essence of some part.

However, as E. M. Zatsepina points out, it is not the classification itself, that’s why their identification is inadmissible, because it represents itself as the method of “crushing” of the whole into parts, while classification is represented by definite consequences of operations, aimed to construction of hierarchical system, each element of which is fixed in definite place and in definite relation (subordination) with the others.

The classification has much in common with systematization. At the same time many authors claim that “systematization is only the external side of classification (that’s why classification can’t be compared to simple systematization)”. Systematization, really, often is realized on the basis of classification but it doesn’t give the foundation to characterize it from the external side of classification, which represents a difficult process, provided by procedure, completing and with qualitatively new sense of “continuing” classification… That’s why classification of any group of crimes must have connection with existing legislation, which can contain violations of rules of systematization and norms of classification of chapters and parts of The Special Part of CC. And as P. Pustoroslev said once “to provide clear and right understanding of The Special Part of criminal law, a cultural state by it legislation in the very beginning must control that it will be stated systematically, in certain system, i.e. in strict order with subdivision of criminal offences into groups, rows and sorts by certain, clear, essential distinguishing signs”. And stressing the meaning of classification of crimes, S. V. Poznishev noted: “as a method of studying classification has a double meaning for scientific research: from the external side – it’s a method that brings in study system and order: from the inner side – it’s a method that predetermines completeness and propriety of study conclusions”.

This way, qualification as a methodological way of scientific perception is the main mean of regulation and systematization of researched material. Qualification in criminal law represents an instrument of theoretic purpose of actual reality, by which is opened its essence and is made the division of objects, creating a united system. On the grounds of qualification is made the determination of different criminal events and is defined their correspondence to empirical data.

For correct classification a very important meaning gets the choice of its sign, related to majority of essential features of dividend from the whole. And as L. I. Krivichenko points out “construction of classification of crimes must arise from:

1) inner connections of signs of crime, giving them certain integrity, forming this or that kind of crime;

2) external connections of separate sorts of crimes between each other;

3) connections and relationships of crimes with other offences”.

The classifications of crimes against justice, which were made at the period of validity of CC of RSFSR of 1960, distinguished by considerable variety. There was expressed an opinion that in its foundation must be laid the signs of the subject of indicated crimes. And stressing the meaning of the subject of the crime for classification, S. S. Rashkovskaya wrote, that “this criterion allows to reveal features of separate groups of concerned crimes more clearly, to understand better the degree of public danger and by this to study more profoundly separate corpus delicti of crimes, included in indicated groups”.

According to meaning of S. S. Rashkovskaya the following groups of crimes can be singled out in this way: 1) crimes made by officials – the members of bodies of justice, inquiry, preliminary investigation, by public prosecutors, judges; 2) crimes committed by people, who violate legal obligation to assist in exercising of justice; 3) crimes committed by convicted and other persons, who incurred another kind of criminal condemnation; 4) crimes committed by other persons, who put obstacles in the way of performance of justice.

However among the supporters of the classification sign different approach is noticed in the way of singling out the groups of such crimes. For example, Y. M. Koulberg singled out three groups of crimes against justice: 1) crimes, committed by officials of law machineries and judicial bodies (special subjects); 2) crimes, committed by persons, concerning who measures of legal compulsion have been applied; 3) crimes, committed by participants of the process.

V. K. Glistin singled out three groups, but they had other contents: 1) crimes committed by officials of bodies of inquiry, inquest, procurator’s office and court; 2) crimes committed by private persons, who were brought to performance of justice; 3) crimes committed by the participants of the process.

I. M. Chernikh singled out: 1) crimes against justice, committed by officials of the court and bodies of preliminary investigation, appealed by law to assist in performance of justice; 2) crimes against justice committed by persons appealed by law to assist in performance of justice; 3) crimes against justice committed by other persons.

According to opinion of B. V. Zdravomislov it’s necessary to single out: 1) crimes committed by officials of justice, while performing their duties; 2) crimes committed by persons, concerning who measures of legal compulsion have been applied; 3) crimes committed by persons, obliged by law and by virtue of civic duty to assist in performing of justice and not to put obstacles in the way of its performance.

A. Sakharov and N. Noskova named such groups: 1) crimes committed by officials of law machineries; 2) crimes committed by citizens; 3) crimes committed by persons, who are serving their sentence.

M. A. Garanina divides all crimes against justice in four groups: 1) crimes, committed by the participants of the process; 2) crimes committed by officials; 3) crimes committed by persons, who are under imprisonment before trial or are serving their sentence; 4) crimes committed by other persons.

Hence, according to the same qualifying sign, which is the subject of the crime, the supporters of this position single out not only various number of groups, including in them different kinds of crimes, but they also use different kinds of criteria, taking as a basis the classification of crimes against justice of the subject of the crime, supporters of such approach proceed from different signs of its qualities, for example, the presence of special signs, imposing responsibilities to be exposed to measures of compulsion or execute them, the presence of duties to assist in performance of justice.

Another classification is also represented in literature, it also consists of three groups: 1) crimes committed by officials and officials of law machineries, bodies of justice; 2) crimes committed by private persons and officials, who take part in performance of justice or connected with it; 3) crimes committed by persons, concerning who justice have been realized, or by persons, who have a duty to carry out the judicial act.

Y. A. Krasikov subdivides the regarded crimes into two groups: 1) crimes committed by officials of court, bodies of investigation, inquiry and prosecutor’s office; 2) all other crimes against justice. At the same time the last group he subdivides in following subgroups: crimes committed by persons, appealed by law to assist in performance of justice; crimes committed by convicted and persons, who are under arrest; crimes committed by other persons against officials of bodies of justice.

Indicated positions provoked objections in literature. I. V. Vlasov and I. M. Tyazhkova pointed out that “construction of system without taking the object into account will lead to artificial and baseless division of crimes, which impede performance of the interests of justice”. And coming from the sign of the object of the crime, they singled out four groups of crimes against justice: 1) crimes against justice, which hinder officials from exercising their rights for performance of tasks of justice, but not contrary to them; 2) crimes against justice, which hinder justice from getting evidence of high quality and truthful information from citizens; 3) crimes against justice, which violate unimpeded getting by justice information about crimes and conditions of it commitment; 4) crimes, which impede the realizing of government compulsion, expressed in sentence or decree of court, in writ of court or prosecutor. However during the analysis of concrete corpus delicti against justice they proceeded from the subject of the crime. Such position of the authors in literature caused fair criticism.

I. M. Bazhanov was the supporter of the idea that the direct object is the qualifying sign of the crime.

There still exist contradictions about classification sign of division of the crimes against justice into groups connected with the adoption of CC of Russian Federation (RF) in 1996. As before some authors suppose that it’s necessary to take in attention subjects of these crimes. At the same time some of them single out: 1) crimes committed by officials and members of law machineries, and bodies of justice (articles (ar) 299-303, 305, 311 of CC of RF); 2) crimes committed by private persons and officials, involved in performance of justice (ar. 294-298, 304, 306, 309, 310, 312-313, 316 of CC RF); 3) crimes committed by persons, regarding who justice had been realized, or by persons, who are obliged to carry out the judicial act (ar. 313-315 of CC).

Other authors also single out three groups, but not the same: 1) crimes committed by officials of justice, while fulfilling their duties (ar. 299-303, 305. part (p) 2 of ar. 303 of CC); 2) crimes, committed by persons, obliged by law and by virtue of civic duty to assist in performing of justice and not to put obstacles in the way of its performance (ar. 294-398, 306-312, 315, p. 1 of ar. 303 of CC).

A. Y. Grishko singles out: 1) crimes committed by the members of law machineries; 2) crimes committed by persons, concerning who measures of legal compulsion have been applied; 3) crimes committed by persons, not related with first two categories.

V. K. Glistin also singles out three groups of crimes, but name them in the other way: 1) crimes committed by officials, realizing justice; 2) crimes committed by other participants of criminal and civil procedure and by private persons: 3) crimes committed by arrested, convicted and their allies.

It’s also proposed such division: 1) crimes committed by officials of bodies of inquiry, investigation, by prosecutors and judges (officials); 2) crimes committed by persons, who are involved in performance of justice or connected with its performance (private persons and officials); 3) crimes committed by persons, regarding who verdict or judicial act is carrying out.

Some authors all crimes against justice subdivide into: 1) crimes committed by officials of justice, while fulfilling their duties; 2) crimes committed by persons, regarding who measures of legal compulsion had been realized; 3) crimes, committed by persons, obliged by law and by virtue of civic duty to assist in performing of justice and not to put obstacles in the way of its performance.

The lack of systematization of crimes against justice by the sign of the subject we can also see in the fact that this criterion doesn’t allow correlating these or those norms, included in 31^st chapter of CC of RF, to a definite group, considerable dispersion of opinions among the supporters of the criterion of division of all crimes against justice into groups.

At the same time it’s proposed in literature to classify the system of crimes against justice not by the subject but by the object, based on it this idea it’s proposed such division: 1) crimes against justice, which hinder officials from exercising their rights for performance of tasks of justice, but not contrary to them (so called malfeasance); 2) crimes against justice, which hinder justice from getting evidence of high quality and truthful information from citizens; 3) crimes against justice, which violate unimpeded getting by justice information about crimes and conditions of it commitment; 4) crimes, which impede the realizing of government compulsion, expressed in sentence or decree of court, in writ of court or a prosecutor.

From our classification we can single out the group of crimes committed in the sphere of justice, which encroach on normal functioning and authority of judicial power. Coming from the characteristics of victim and the subject they can be subdivided into four groups:

1) crimes committed against persons, who take part in performance of justice (p. 1 and p. 3 of ar. 294, ar. 295, p. 1, 3 and p.4 of ar. 296, p. 2 of ar. 297, p. 1 and p. 3 of ar. 298, ar. 311, p. 1 of ar 312 of CC);

2) crimes committed against persons, who take part in court examination ( ar. 295, p. 2 of 296, p.1 of 297, ar. 309, 311 of CC);

3) crimes committed by persons, who are involved in performance of justice (p. 2 and p.3 of ar. 301, ar. 305 of CC);

4) crimes committed by persons, who take part in court examination (p. 1 of ar. 303, ar. 307, 308 of CC).