Określanie granic karalności w procesie kształtowania się rosyjskiego prawa karnego

Abstrakt

Not all actions taken towards the commitment of a crime contain a sufficient degree of social danger to justify a reaction with the strong means of criminal law. But at what stage of crime does criminal liability begin? Preparation? Attempt? This article intends to determine the point at which a behaviour turns from being inoffensive into being socially dangerous in the history of Russian criminal law, assuming that the social and political changes Russia experienced within the past 150 years could not have been without impact on it. As a matter of fact, the determination of the aforementioned „sufficient degree” of social danger widely depends on the aims a legislator strives for with its criminal laws. The more repressive the intent, the earlier liability begins. In criminal science objective and subjective approaches, as well as a set of unifying theories, intend to substantiate the minimal conditions of punishment for uncompleted crimes. Unlike the objective approach, requiring a real danger for the concrete object of crime, the more repressive subjective theory basically founds pre-completing liability on the pure intention of the subject of crime. Russian criminal law began considering the beginning of criminal responsibility in the mid 19th century. The first criminal code of 1845, mainly influenced by the objective approach, did not fit the stoutly repressive interests of the empire’s regime. The 1864 modifications of the criminal code introduced a unifying approach, clearly dominated by subjective elements. Repression from then on would mainly depend on the criminal’s view on his behaviour (art. 115 criminal code of 1864), even if punishment for preparation of crime remained exceptional. Acts on criminal law by the Soviet government were to begin with unstructured, but repressive. Surprisingly, the first criminal codes did not strongly disagree with the empire’s traditions. The turning point towards complete arbitrariness is marked by the 1926 Criminal Code, which introduced a material concept of crime giving up „formal confinements” of tribunals. Soviet authors may have always pretended an objective background of the material approach founded on the subject’s social danger, but the repressive purposes and results clearly demonstrate its subjective nature. This is particularly clarified by the impact of the new code on the beginning of criminal liability. In order to amplify the society’s power of impact against crime (and subversion), the criminal code provided for regular liability of attempt and preparation of crime. It abandoned limitations stipulating that preparation shall be considered as any „creation of requirements for a crime”. It hence opened responsibility for any kind of real or alleged action, or even omission, and made preparation of crime (especially of counterrevolutionary acts) one of the main incriminations during Stalin’s repression period. Not abandoning the material concept, the 1960 and 1996 Criminal Codes sustained the written elements of offence, and criminal law became more reliable again. Nevertheless neither the criminal code of 1960, nor the criminal code of 1996 abolished liability for preparation of crime, even if the later one restricts liability to preparation of grave and eminently grave crimes. Regardless of the fact that current Russian legal literature does not actively discuss the foundation of criminal liability, it appears very clear that since 1864 all Russian legislators (as well as most in the world) mainly started from subjective concepts when fixing the beginning of criminal liability. Soviet criminal law was thus unable to emancipate from the traditional approaches and even amplified arbitrariness under the criminal code of 1926. Today, the most excessive consequences of arbitrariness are eased by objective frictions, shown for instance in an obligatory mitigation of punishment for attempt and preparation of crime.