Art. 37 of the Criminal Code of the Russian Federation "Necessary defense". Comments
In the criminal legal system, a term such asnecessary defense (Article 37 of the Criminal Code of the Russian Federation). In practice, however, there are many problems with its application. Let's consider moreconcept of necessary defense.
Relevance of the issue
In practice, there are often situations where a person is forced to use force to protect himself or others. In such cases, one speaks ofnecessary defense. Art. 37 of the Criminal Codeexcludes the crime of the act while causing harm to a person who encroaches on the life or health of another person. In this case, there is a reservation in the norm.
According toArt. 37 of the Criminal Code, the necessary defensemust be expressed in actions corresponding to the danger and nature of the assault. In other words, the infringing subject is not allowed to cause undue harm. With the definitionthe limits of necessary defensejust the difficulties arise in practice. The fact is that a person who applies violence to a criminal can not always adequately assess the situation.
It is necessary to know,what kind of person can be called dangerous for society, what measures can be applied to it, and which will be regarded as superfluous and not relevant to the nature of its behavior.
They follow from the meaningArt. 37 of the Criminal Code.
Required defense, according to the norm, are actions:
- aimed at protecting the rights and personality of the defending, other entities, as well as the interests of society and the state, excluding criminality;
- legitimate and socially useful.
Protection from infringement is carried out by inflicting to the attacker a certain harm. At the same time, his interests are also protected by legislation within the established framework.Applying the necessary defenseis associated with the extreme nature of the defender's behavior and the need to determine its limits.
In case of exceeding the established scope of actionpersons will be regarded as deliberate, obviously not appropriate to the nature and the danger of encroachment. Accordingly, measures of responsibility will be applied to the defender.
Legitimacy of necessary defense, thus, takes place in the case whenthe subject commits acts in circumstances that determine the grounds and conditions for the protection of protected interests from encroachment and, at the same time, designate the boundaries of this defense. The presence of certain limits of behavior prevents unnecessary damage to the attacker.
The state of the necessary defense is expressed by a complex of features, according to which not only protection, but also encroachment is characterized.
Under defense as a whole understand oppositionattack. That is, it is a reciprocal, forced, derivative action aimed at preventing illegal behavior. An attacker in such cases himself becomes a victim of his actions.
In the criminal law sense, the defense againstillegal encroachment, which serves as an objective basis for the application of protection. The legislation does not disclose the concept of a dangerous assault, it is not defined,what kind of person can be called dangerous for society. However, it follows from the analysis of norms that defense is unacceptable against inaction / actions that formally contain the signs of crimes, but in view of the insignificance of the threat that does not represent.
To implement the protection, you must havedangerous factor. It is the commission of an unlawful actsubject, encroaching on life, health, rights, property of others who violate the interests of the state, society or citizen, or the threat of its commission.
Socio-legal characterization of encroachmentis limited to one sign - a public danger. At the same time, the criminal legislation does not require that the act / omission be committed guilty, and the person who committed it was able to bear responsibility for the responsibility.
An encroachment that is considereda dangerous factor, can be characterized as an act fixedin the Special Part of the Criminal Code. At the same time, there will be no significance, the subject was brought to account for his commitment, released from punishment in connection with insanity, juvenile (or for other reasons) or not. This understanding of the encroachment, acting as a basis for the use of weapons and, consequently,harm in the custody of the person who committed the crime, is present in the Instructions on the behavior of employees providing protection of law and order.
Conditions of necessary defenseFormed with the active action of the infringingsubject. If the behavior of a citizen is expressed in counteracting an attack, the encroachment expressed in the form of this attack is the initial action that calls for an immediate and effective reaction.
If there is no action, a threat is created to the interests protected by law. Inaction is not considered an attack, an attempt to commit an act, for example,murder. The necessary defenseThis acts as a response to the obvious activeactions. The inactivity of a mother who does not feed a newborn, which is stopped by the use of violence or its threat, does not create a basis for necessary defense, as some authors believe. In this case there is coercion to action - the performance of duty. This situation is resolved in accordance with the provisions of Part 2 of Article 40 of the Criminal Code, taking into account Art. 39 of the Code.
With guilty actions, intent always takes place. Careless acts can also be intentional and, in principle, be grounds fornecessary defense. For example, the driver rides at high speed and creates an emergency situation. However, in such situations, the danger of action is not always obvious.
To recognize the legitimacy of actions to preventcausing harm to health through negligence, objective orientation and character are importantbehavior, from which begins and which accompanies a careless act, the reality of encroachment and its threat. For example, the defense of a subject from the actions of a health worker who, through carelessness, typed poison into the syringe instead of a medicine and tries to inject is legitimate.
A variety of measures taken to preventcausing harm to health through negligence, the direct possibility of defense depends in many ways on the intentions of the infringing person, his persistence in achieving a goal that represents an objective danger, motives, etc.
Some crimes begin in the form of an attack, and then continue as encroachments involving retaliation against attempts to stop them. Accordingly, there are grounds fornecessary defense. An example ofSuch a situation can be the capture of hostages, premises, vehicles.
Conditions for counter-violent response,Arisen at the time of the capture of people or objects are preserved and during their unlawful retention. At the same time, there is a possibility of causing serious damage to the health of hostages or property damage to the facilities. The need forharm in the apprehension of persons who committed a crime, at this stage of encroachments is caused by the threat of its continuation and transformation into an attack on employees performing their duties related to the protection of order and the fight against crime.
It should be said that even the transfer of weapons, which was used in the attack, from the attacker to the defender can not indicate the end of the unlawful action.
A dangerous assault, which is carried out inform of attack, causes an extreme situation. It can be characterized as the expectation of realizing the possibility of using defense. This stage is considered the initial stage. He points to the moment and the possibility of the beginning of defense. In this case, they are determined for a specific time interval.
Right to the necessary defense
According to Part 3 of Article 37 of the Criminal Code, they are equally enjoyed by all persons, regardless of whether they have professional or other special training, as well as their official position.
The right to defend can also be used by Russian,and foreign citizens, and persons who do not have citizenship. At the same time, for the citizens of the Russian Federation, the necessary defense is not only a natural legal opportunity, but also as a guarantee of the implementation of the provisions of the Constitution on the inviolability of the individual, housing and property. Its consolidation in the legislation is aimed at creating the conditions for individuals to fulfill their constitutional duty to protect property rights, public and state interests.
For certain categories, the necessary defenseacts not only as a right, but also as a duty. Its non-fulfillment entails disciplinary, criminal or other liability. Citizens of the Russian Federation who implement the relevant functions or occupy a certain official position, not only have the right, but also must protect the interests protected by law, as it is regulated by special legal acts that determine their authority and status in a specific field of professional activity. In particular, a police officer must maintain order, stop any actions that violate it; the sentry is obliged to protect the military object from attacks, etc.
The defending individual has the right to apply active measuresto protect against dangerous attacks. They, among other things, suggest inflicting harm on the attacker. The implementation of this measure does not depend on the possibility to avoid encroachment or to turn to other persons or structures for help.
Harm can be caused exclusivelyto the attacker. If the encroachment is committed by several persons, the defender can apply to any of them such measures as are determined by the nature and danger of the group's actions as a whole. The infliction of damage to outside actors who are not involved in encroachment can not be considered an act of necessary defense. In these situations, the provisions of the law governing the state of emergency are applicable.
As it serves a special purpose. A person can be moved by a sense of self-preservation, intolerance to unlawful action, moral duty, the desire to help the victim, the desire to show nobility, empathy for the victim,
The goal is of great importance in determiningmoral and social nature of behavior caused by socially dangerous assault. Given this fact, the highest judicial authorities associate the legality of actions with its presence in the defender. Actions can be performed for:
- Reflections of the attack.
- Release from the attacker.
- Suppression of antisocial behavior.
The specified subjective signs - presencespecial motive and purpose - allow us to delineate the necessary defense from other acts that have an external resemblance to it, but not aimed at repelling an attack, but at inflicting damage from envy, revenge, etc.
As follows from the above information,defense and harm arising out of it must be caused by the need to stop the attack and protect the interests protected by law from danger. With this in mind, if a person commits acts that provoke an attack, his response can not be considered a necessary defense.
The actions of the subject to reflect the hazard are notare legitimate if he himself summoned it. In such situations, the responsibility for the harm done will occur according to general rules. The person who provoked the attack did not pursue socially useful goals, but acted out of negative motives.
The infliction of harm to the attacker assumes the timely performance of actions by the defender. Damage can be caused only after the beginning and until the end of the assault, that is, with real danger.
Timely necessary defense can be calledOnly if, for example, an attacker takes possession of values, breaks order, strikes a citizen, tries to take weapons, opens a door, penetrates into someone else's housing, etc. In such cases, the encroachment is considered to have begun, and accordingly, defense may begin.
In determining the timeliness of the suppressorsThe moment of the end of the attack is of no small importance. It is associated with the implementation of objective signs of unlawful action and coincides for acts with:
- formal composition - with the moment of commission;
- material composition - with causing harm;
- continuing / continuing composition - with the moment of interruption or completion of unlawful actions.
With the end of the illegal or equivalent antisocial behavioral act, the need to inflict damage on the attacker to suppress his actions disappears.
Late or premature requireddefense is excluded. Due to the fact that the actions of the defender are aimed at preventing / preventing the already existing encroachment, then they can not last longer than unlawful behavior.
Exceeding the limits of defense
It takes place in the commission of willfulactions that clearly do not correspond to the level of danger and the nature of the offender's unlawful actions. It is necessary to take into account an important nuance. As an excess of the limit of defense, it is possible to consider not just any, but only obvious, obvious discrepancy of protection to the encroachment being committed.
In the objective sense, the distinctness of the discrepancyis expressed primarily in inflicting excessive damage on the attacker. Any defense "with a reserve" or "overstatement" is socially dangerous. It objectively goes beyond the need, which is determined by the goal of suppressing the encroachment.
The more dangerous the attacker's actions, the moregrounds for the application of relatively more dangerous and, accordingly, more effective measures. Defense is always recognized as necessary if the defender did not have other means of defense, including special means and weapons, and if only their use allowed in a particular setting to stop illegal actions.
In repelling a dangerous attack, the use ofweapons or other special means - an extreme measure. It can be necessary or unique to protect against subjects that actually threaten the health or life of the defender himself or others.
The rules governing the applicationspecial means, physical strength and weapons by law enforcement officers in the performance of their official duty, can prevent excessive harm to subjects whose actions are the basis for necessary defense. In normal situations, the defender, of course, is obliged to warn the attacker of the intention to use certain measures and give him enough time to fulfill the requirements.
However, in situations where procrastination createsan immediate threat to the health / life of people and when a warning is clearly impossible or inappropriate, a person has the right not to look back at the rules, not to follow them rigorously. Otherwise, the defender runs the risk of losing any opportunity to stop the attack and save the victim.
Use of weapons
It is allowed only to suppress aggression of the attacker.
If the citizen usedgun for self-defenseif there are objective grounds for that, he does notmust be condemned. If the limits to the suppression of the infringement were not violated, any condemnation of the defending person should be regarded as a manifestation of illegality. This situation is a consequence of a misinterpretation of the list of entities that have the right to self-defense. Moreover, this practice attracts indecision and law enforcement officers use the weapons in appropriate cases, although the current legislation allows its use.
However, hasty actions can lead tounjustified victims. For example, a citizen, by lawfully applying a pistol for self-defense or to protect against the encroachment of others, violates the established rules: he does it in a public place when there is a danger of causing harm to extraneous subjects. In addition, it is unacceptable to use for protection such means, which present an increased danger to people and do not leave any chances for survival. This includes, in particular, antipersonnel / anti-tank grenades, automatic weapons, machine guns, flamethrowers, etc.
Currently, legislation providescitizens have the right to carry out armed self-defense. Accordingly, in the reflection of aggression, it is also possible to exclude the fatal outcome associated with the use of weapons. However, the death of the attacker is only allowed as an exception.
The current legislation establishesresponsibility for exceeding the limits of defense in the event of murder or serious injury to health. Such actions are regarded as intentional, but belong to the category of acts of small gravity.