Квалификация преступления, совершенного адвокатом с использованием служебного положения

Abstract

The issue of the possibility of classifying a crime committed by a lawyer according to the “using an official position” attribute is controversial in the theory of criminal law. In practice, in some cases this qualifying factor is used in the legal assessment of the actions of a lawyer, in other cases it is not applied. When prosecuting a lawyer, clear criteria for applying the “using an official position” qualifying factor are necessary. The paper analyzes the explanations of the Plenum of the Supreme Court of the Russian Federation, which reveal the “using an official position” qualifying attribute. It is identified that the “using an official position” qualifying attribute in the decisions of the Plenum of the Supreme Court of the Russian Federation is understood differently in relation to various crimes. The author analyzes the judicial practice of the application of the indicated qualifying attribute when prosecuting a lawyer. The study identified the lack of a unified approach of the courts to the classification of the actions of a lawyer according to the “using an official position” attribute. The paper studies the arguments of scientists who protest against the application of the “using an official position” qualifying attribute when prosecuting a lawyer. It is concluded that the official position of a lawyer is associated not with his professional status, not with the position he occupies, but with the functions that a lawyer, not being an official or a person performing managerial functions in a commercial or other organization, implements in the law enforcement process. Therefore, under certain conditions and in certain cases, there is an objective necessity to charge a lawyer who has committed a crime with the “using an official position” qualifying attribute.