To the question of the exemption from criminal responsibility on the example in the cases of economic orientation

The article analyses the peculiarities of crime justification in the economic activity sphere. The legal grounds, the implementation issues on practice and the conditions for exemption of this type are considered, the solution ways are proposed.

Key words: exemption from the criminal liability, crimes in the sphere of economic activities, criminal policy of the state, criminal legislation, the grounds for exemption from criminal liability

The correction of the offender feasibility, based on the principles of justice and humanity, as well as the principle of reasonable economy of criminal repression, by any means not connected with criminal liability implementation nowadays is the main state direction in shaping legislation. The criminal liability exemption in the cases of economic sphere is caused by the development necessity of the state criminal law policy, that is not only aimed at protection of the legitimate rights and interests of citizens, but also from unfounded criminal law if there is sufficient reason for that.

The institute of exemption from criminal liability is of particular importance in the modern state criminal policy. The exemption from criminal liability cannot be considered rehabilitating basis of releasing, as well as the exemption cannot justify the criminal.

A. V. Endoltseva gives the following definition of exemption from criminal liability: «Discharge from criminal liability is the expressed in the corresponding procedural act of the state unconditional rejection or abstention (conditional refusal) in the person of official recognition authorized bodies of a person guilty, and as a consequence of his conviction and punishment in case if the person is inappropriate to be prosecuted in cases provided for in criminal law according to the legislator». [3, p. 72–73]

It should be mentioned that the criminal liability release is possible only in cases where there are appropriate background and conditions for the attraction of the person responsible for committing a crime. In this case, the subject makes certain socially dangerous act, which contains all the elements of a crime under the relevant Russian Criminal Code article. The said act objectively is socially dangerous and causes significant harm to legally protected social relationships.

From I. Y. Kozachenko point of view, the bases of exemption from criminal liability should be understood as «a set of inherent to specific crime of objective circumstances that are tailored to the legal assessment and are necessary and sufficient to justify the Court's conclusion that the offender can be corrected without the implementation of justice». [7, p. 590]

The most common literary classification of releasing of criminal liability is its division into subjective and objective grounds for justification.

The objective grounds are directly connected with the public danger characteristics of the committed act, deriving from the character and the public danger degree. Public danger as a crime sign is the objective act ability to cause significant harm to legally protected interests. [6, p. 11–12] As a result, any criminal act inevitably leads to the onset of socially dangerous consequences, which are expressed in the form of damage to the most significant public relations. With the passage of time the public danger degree of the deeds may increase or decrease. The latter circumstance shows that if later the public danger of crime is greatly reduced then this fact can be the bases for the application to the person of the relevant regulations of the exemption from criminal liability, provided in the Criminal Code of Russian Federation.

As a general rule, according to the articles 75, 76, 76.1 and 78 of the Russian Criminal Code, a prerequisite for a person's release from criminal liability is committing an offense for the first time of small or moderate severity, with the exception of the specifically provided cases in the Russian Federation Criminal Code. [9, art. 75–78]

The subjective grounds are connected with the evaluation of the guilty person. As A. G. Antonov mentions «the personality of the guilty person cannot be considered separately from his/her crime, that’s why it is necessary to explore the personality in the aspect of crime». [1, p. 24–25]

This group bases indicates the reduce or disappearance of the guilty person’s public danger, as a result the person stops being socially dangerous and the necessity to sue the person is ceased.

Since the mid-20^th century this question has been the discussion subject of a number of researches, such as Kelina S. G., Egorov V. S., and others. Similar to Kelina’s position towards the grounds classification that characterize the personality of the perpetrator adheres A. A. Dzagurnov, who divides all the circumstances into three groups:

The first group of circumstances may include the nature and severity of the offense, as well as facts indicating about motives of the person to commit the crime or of the specific person role at the time of committing the act. In addition, it is said, that the determining influence on the evaluation of the degree of public danger of the guilty person can have such factors as medical or psychophysical nature, as well as a number of other circumstances. [2, p. 43–47]

Among the second group of circumstances relating to the characteristics of the guilty person before the offense was committed, high priority should be given to whether there has been a criminal record, evidence of recidivism, because in almost all cases of the exemption from criminal liability the possibility of applying the relevant norms in reoffending is excluded.

Release of criminal liability is allowed only if a crime is committed for the first time. In assessing the individual in the period preceding the commission of the offense, it is important to review his behavior in daily life, the fact of having a family, children or other dependents such as disabled parents.

The last group of the circumstances connected with the post-criminal behavior of the perpetrator. In particular, the defection of public danger of the person guilty of a crime indicate circumstances such as the termination of him continuing criminal activity, active help investigating the inquiry, expressed in voluntary surrender, helping in detection and investigation of the crime, frank confession, exposing partners, realization of the awareness of criminal behavior and remorse, compensation of property.

Also in his favor will be such facts as admission to school, finding employment, the termination of anti-social relationships, creating a family, occurrence of children, presence of the positive characteristics of the residence place and work, etc.

Thus, highlighting these grounds for exemption from criminal liability, the legislator emphasizes that the releasing from criminal liability is possible only if the subjective and objective grounds are present, that together show a significant reduction or backsliding of public danger of both the act and the person guilty of committing it, which creates a basis for the application of the relevant provision for release from criminal liability.

Recently, there has been a steady tendency in expanding the state role in the struggle against economic crime.

This fact explains the appearance of the new rules in the Russian Criminal Code regulating the grounds and conditions for releasing from criminal liability in cases of crimes in the sphere of economic activity, that was enacted by the federal law on December 7, 2011 № 420 — The Federal Law «On amendments to the Criminal Code of the Russian Federation and certain legislative acts of the Russian Federation».

Objective grounds for justification in cases of crimes in the sphere of economic activity consist of such circumstances in such way that what constitutes a crime shall be provided ch. 1 or 2 of the 76.1 article of the Russian Criminal Code. It should be noted that the legislator puts the possibility of exemption from criminal liability in direct dependence on the category to which the crime relates.

The compositions of the crimes listed in this article apply to different categories of crimes. Thus, the category of minor offenses are crimes under Ch. 1, Art. 171, Art. 177, Ch. 1 and 2 Art. 180, Ch. 3 and 4 of Art. 184 Ch. 1 Art. 185, Art. 185.1, Ch. 1 Art. 185.2, Ch. 1 Art. 185.4 Art. 193, Ch. 1 Art. 195. To the category of medium gravity crimes belong the compositions provided in art. 171.1, Ch. 1 Art. 172, Ch. 2 art. 176 and Art. 199.2, and to the category of serious crime listed in the article 185.3, Art. 196 and Art. 197.

Moreover, among the list of minor crimes, there are several offenses, penalties for the commission of which do not provide for a penalty of imprisonment (Part 1 of Art. 171, Part 3 of Art. 184 and others.). In this regard, many researchers note that criteria that form the basis for the selection of the crimes for which, under certain conditions, exempt from criminal liability remain unclear.

Subjective grounds for exemption from criminal liability consist of a set of conditions.

First of these conditions, in accordance with Art. 76.1of the Russian Criminal Code is such a circumstance as a crime being committed for the first time. For the first time committed a crime according to the Resolution of the Plenum of the Supreme Court on June 27, 2013 № 19 «On the application of legislation courts, regulatory grounds and procedures for exemption from criminal responsibility» should be considered as a person:

1. committed one or more offenses (regardless of their qualification for an article part of the article or several articles of the Criminal Code of the Russian Federation), for neither of which he/she has not previously been convicted;
2. previous sentence in respect of whom at the time of the commission of a new crime has not entered into force;
3. previous sentence in respect of whom at the time of the commission of a new crime has entered into force, but by the time it was committed, took place one of the circumstances, annihilating the legal consequences that attract a person to criminal liability (for example, release of a person from serving a sentence due to the expiration of the limitation period, the execution of the previous conviction, withdrawal or cancellation of conviction);
4. previous sentence in respect of whom entered into force, but at the time of the trial criminality of a deed was eliminated, for which the person was convicted;
5. has previously been released from criminal liability. [7, paragraph 2]

In other words, under the person who committed the crime for the first time in considered a person who has not previously been judged (including those persons against whom the verdict has not entered into force), or a person, whose conviction has been removed or extinguished in accordance with the law.

Another factor is the positive post-criminal behavior of a guilty person, which can be expressed by the following actions:

1. The total compensation of the damage caused to the budget system of the Russian Federation, at the time of committing the crime, under Part. 1, Art. 76. 1 of the Russian Criminal Code;
2. The Art. 28.1 of The Code of Criminal Procedure provides clarification to what is meant by compensation of the damage caused to the Russian Federation budget system. It relates to damages' payment of the full amount of arrears, penalties and fines in the amount determined in accordance with the legislation of the Russian Federation on taxes and fees in the context of the tax authority for calculating penalties and fines. [8, art. 28.1]
3. The compensation by the perpetrator of damage caused to citizens, organizations or the state as a result of committing a crime, and in addition the transfer to the federal budget of the monetary compensation in the amount of five times the amount of the damage;
4. The transfer by the perpetrator to the federal budget the income derived from the crime, and monetary compensation in the amount of five times the amount of income derived from the commission of the crime.

This provision is mandatory and is the absolute grounds for exemption from criminal responsibility, which is in particular evidenced by n. 27 Resolution of the Plenum of the Supreme Court on June 27, 2013 № 19 «On the application of the legislation courts, regulating the grounds and procedures excluding criminal responsibility», which states that if the Court of First Instance on the grounds under Art. 28.1 The Code of Criminal Procedure, has not stopped the criminal case and (or) criminal prosecution, in accordance with article 389.21 CCP RF the appellate court cancels the judgment or other decision of the first instance court and ceases the criminal case and (or) criminal prosecution.

From our point of view, this norm has a number of significant drawbacks.

Secondly, in our opinion, the crimes listed in the article 76.1 of the Criminal Code should not contradict, and even more duplicate the conditions of exemption from criminal liability provided in the notes to individual articles of the Criminal Code of the Russian Federation. In connection with this, we believe it is appropriate to delete Part 1 of Article 76.1 of the Criminal Code, in order to avoid conflicts in the application of the relevant rules.

In addition, based on the analysis of judicial statistics we are able to come to a conclusion about the implementation ineffectiveness of the standards in practice. Based on statistical data of 2015, 28 criminal proceedings against the perpetrators of tax evasion in connection with damages in economic orientation cases had been discontinued. [10]

We suppose that the implementation effectiveness of this provision requires making certain adjustments to this novel. Many researchers note the discriminatory nature of the rule, which is expressed in material terms. Five-time amount of compensation arising out of the crime commission is often too heavy for a number of citizens.

So, for example, the minimum amount of compensation from the offense commission under Part. 1, Art. 185 of the Criminal Code, if the person extracted the income in the amount of 1 million rubles, will be up to 5 million, while the sanction of this article is punishable by a fine of one hundred thousand to three hundred thousand rubles or the salary for the period from one year to two years, or by compulsory works for a term of up to four hundred and eighty hours, or correctional labor for up to two years.

In this situation, for the guilty person it is much more profitable to serve the penalty rather than pay this compensation. Therefore, in our opinion, it is advisable to reduce the multiplicity of the reimbursable damage, in order to increase the effectiveness of the implementation of this provision on practice.

Therefore, by introducing into the Criminal Code certain innovations, in this case, a new type of criminal liability exemption, the legislator should be in addition to precisely follow the legislative technique, consider compliance with these innovations to the fundamental principles of criminal law, as well as moral principles and norms prevailing in society, in order in order to avoid misinterpretation and perception of the relevant rules.

References:

1. Antonov A. G. Spetsial'nye osnovaniya osvobozhdeniya ot ugolovnoy otvetstvennosti [Special grounds for exemption from criminal liability]. Kemerovo: Kuzbassvuzizdat, 2012. 270 p.
2. Dzhagrunov A. A. K voprosu ob uchete lichnosti vinovnogo pri naznachenii nakazaniya [To the question of taking into account the person guilty in sentencing]. Tambov: Gramota, 2013, № 7.
3. Endoltseva A. V. Institut osvobozhdeniya ot ugolovnoy otvetstvennosti [Institute for exemption from criminal liability]. Moscow: Yuniti-Dana, Zakon i parvo, 2004. 231 p.
4. Makarova O. V. Osvobozhdenie ot ugolovnoy otvetstvennosti po delam o prestupleniyakh v sfere ekonomicheskoy deyatel'nosti [The criminal liability exemption in the cases of economic sphere]. Journal of Russian Law, 2015, № 1.
5. Solodkov I. A. Obshchestvennaya opasnost' prestupleniya i ee ugolovno-pravovoe izmerenie [Social danger of the crime and its criminal legal dimension]. Saratov, 2013. 24 p.
6. Kozachenko I. Y. Ugolovnoe pravo. Obshchaya chast' [Criminal law. A common part]. Moscow: Norma, 2015. 720 p.
7. The Resolution of the Plenum of the Supreme Court on June 27, 2013 N 19 «On the application of legislation courts, regulatory grounds and procedures for exemption from criminal responsibility».
8. Criminal Procedure Code of the Russian Federation of 18.12.2001, № 174-FZ (as amended on 19.12.2016) // SPS Consultant Plus.
9. The Criminal Code of the Russian Federation of 13.06.1996, № 63-FZ (as amended on 07.02.2017) // SPS Consultant Plus.
10. http://www.cdep.ru/index.php?id=79&item=3418 (reference date: 01.02.2017).