Social and legal grounds for the recognition of lawful harm caused under circumstances excluding the criminality of the act

Abstract

For 25 years of operation of the Criminal Code of Russian Federation, the doctrine has not formed an understanding shared by most researchers of such a basic category of the institution of circumstances excluding the criminality of an act as the basis for recognizing harm as permissible in the relevant circumstances, and it has not been determined which of the properties of the crime specified in Article 14 of this Code is absent in the acts that caused harm in circumstances excluding the criminality of the act. In this regard, the purpose of the study is to determine the social grounds for causing harm in which society considers permissible, as well as the legal basis the absence of a crime property in the act that caused harm in a legally established situation. The article proves that the general social basis for the permissibility of causing harm in the reflection of a socially dangerous encroachment, the elimination of other threats is the necessity, the extreme use of a harmful method, the impossibility of resolving social conflicts and contradictions without causing harm. It is emphasized that causing harm when repelling an encroachment in situations of necessary defense, eliminating danger in extreme necessity, etc. it cannot be evaluated as socially useful. It is proved that for each of the circumstances specified in the norms of Chapter 8 of the Criminal Code of Russian Federation, there is a social basis (reason), by virtue of which society allows harm to be inflicted. For example, the social basis of the permissibility of causing harm in defense (defense) is rooted in the natural right of a person to defend himself and the objective impossibility of the state to fully ensure the safety of any person; the social permissibility of causing harm when detaining a person who has committed a crime is determined by the need to implement the principle of the inevitability of responsibility for the crime committed. From the legal point of view, the author of the article concludes that the norms on the circumstances excluding the criminality of the act contain exceptions to the general prohibitions established in the norms of the Special Part of the criminal law. The legislator did not endow with the property of illegality a consciously committed act that causes harm under any of the circumstances excluding the criminality of the act, even when it is socially dangerous.