Punishment Charter 1864 Yaroslavl Regional Court of the Yaroslavl Region
Verification work
On the history of the domestic state and law
Option number 1.
Question for essay-reasoning:
Exploring the features of Ancient Russia, determine what was the nature of the social system: tribal, feudal, slave-owning? Give reasons for your answer.
Completed:
Student 403 training group FZO
Kolesnikov Alexander Evgenievich
Home address: Kirov region,
Yaransk., st. Lagunovskaya, 26-34
Place of work and position:
security department FBU IZ-43/3
Checked:
Associate Professor of the Department of State and Legal Disciplines
Major of Internal Service, Ph.D.
Perepinos Yulia Alekseevna
Date of delivery of the test:
Vologda, 2010.
Introduction3
1. Composition-reasoning : 4
Exploring the features of Ancient Russia, determine what was
the nature of the social system: tribal, feudal,
slave-owning? Give reasons for your answer.
2. The practical part. Tasks.6
3. Comparative table. 9
Conclusion. 22
Bibliography. 24
Introduction
The history of state and law is both legal and historical science. She studies the general historical patterns of the development of state and law. The state, being an organization of public authority, and law as a system of universally binding norms expressing the state will built into law, are two interrelated social phenomena.
An appeal to the history of Russia and Russia helps not only to see the present through the prism of the past, but also to answer the eternal questions: who we are, where we came from, where we are going, in the name of what. Knowledge of the past helps to understand the present and explains the tasks of the future. The people, familiar with their history, live consciously, are sensitive to the surrounding reality and know how to understand it. Knowledge of national history is the path to national identity.
To study the question posed, a more complete and objective answer to it, I used the following IOGP methods:
the historical method is the study of the issue in chronological order, i.e. in the process of development;
comparative method - comparison of state and legal phenomena in Ancient Russia and modern Russia.
This work reveals the stages of the political history of Ancient Rus, its social system. The article considers the application of law in specific situations, on the basis of various legal documents in certain periods of the development of Russian society. A comparative analysis of the constitutions of Russia from the beginning of 1918 to 1977 was carried out.
This work will be useful for students of secondary and higher educational institutions as an additional aid for performing independent work, preparing for seminars and tests.
Task number 1.
Composition-reasoning:
Exploring the features of Ancient Russia, determine what was the nature of the social system: tribal, feudal, slave-owning? Argument your answer.
Exploring the features of Ancient Russia, the processes taking place in Old Russian society, you begin to understand that the nature of the social system was complex and mixed. . Even from the period of Indo-European unity, the Slavs carried out developed family relations, single marriage and types of blood, by the father, kinship. The patriarchal Proto-Slavic family, inhabiting the whole, constituted a community united by ties of blood kinship, otherwise - a clan. The clan community bore a common name from its ancestor (ending in - ichi, -ovici, -vtsy), jointly owned property and was managed by her elder (headman, ruler, ruler), who maintained peace and harmony in the community, sorted out misunderstandings in its environment and disposed of the work of its members.
The tribal communities of the Eastern Slavs were characterized by the absence of private property, all property was collective.
The emergence of the Old Russian state is associated with the decomposition of the primitive communal system, which the tribes of the Eastern Slavs experienced in the 6th century. Tribal and consanguineous relations are replaced by territorial, political and military ties.
With the division of labor and an increase in its productivity, it becomes possible to exploit the labor of others. In the rural community, the process of social stratification begins, the separation of the elite, which grew rich due to the exploitation of neighbors and the use of slave labor.
By the VIII century. on the territory of the Slavic tribes, 14 tribal unions were formed. At the head of the union were prince and princely squad.
The form of social relations of the Slavs in the VII-VIII centuries. performed military democracy . Its features include:
Participation of all members of the tribal union in solving the most important issues;
The special role of the people's assembly as the highest authority;
General arming of the population (militia). The ruling class consisted of the old tribal aristocracy- leaders, priests, elders - and wealthy members of the community.
In pursuit of military and political goals, tribal unions united into even larger formations - "Unions of unions" .
The Old Russian (Kiev) state in its form was early feudal monarchy . It lasted until the middle of the 12th century. In the second half of the XI - the beginning of the XII century. on its territory began to form semi-states: Kievskoe, Chernigovskoe, Pereyaslavskoe.
The political system of the ancient Russian state combined both the institutions of the feudal formation and the primitive communal system. Later, under Yaroslav Vladimirovich (1019–1054), feudal features were further developed. At the head of the state was a prince who ruled in Kiev. He was the oldest of his kind Rurikovich, the princes of the tribal unions had to obey him. These, as a rule, were the sons and nephews of the Grand Duke.
As a result, we see that in the process of stratification of Slavic society into classes and the further development of social relations, the characteristic features of tribal relations remain. This is the participation of all members of society in solving important issues in “ military democracy", And the preservation of the institution of the genus at" early feudal monarchy". In both cases, the entrance to the ruling elite was, as in tribal relations, of the soldiers who defended their settlement ( princely squad). And the head among them was the prince ( first among equals). With all this, the princes were not the owners of the lands, but the managers, upon whose death or their change the princely squad was deprived of their privileges given by the former prince.
Task number 2. The practical part.
Solve tasks. The correct answer is a complete answer to the question with a mandatory link to the corresponding article, chapter, part of this source.
Problem number 1
Use the text of the Extensive Edition of Russkaya Pravda.
Boyar Nikifor was killed in a fight on Beloozero in the village of Vysokoe. The killers have not been found. Who will be responsible for the crime committed? What is the punishment for this crime?
According to paragraph 3, 6 of the R.RP. to impose on the village of Vysokoe on Beloozero a double virus in the amount of 80 hryvnia for the murder of the prince's husband (boyar Nikifor) in a litter or at a feast. According to clause 4 of the PR. must pay in how many years can.
Extract from "Extensive Russian Truth":
p. 3. If someone kills the prince's husband in a fight, and they do not look for the murderer, then the virus - 80 hryvnia - is paid by the community in the vicinity of which the murdered person was raised. If an ordinary person is killed, the community pays 40 hryvnia.
Item 6. But for a murderer who invested in the community's big payments for others, the community pays according to the layout only when he committed a murder in a quarrel or at a feast.
p. 4. If any community starts to pay the wild (general) virus, when there is no killer, then let it pay it in how many years it can.
Problem number 2
Use the text of the Military Article 1715.
A soldier of the Rostov regiment Nikita Bobylev appeared before a military court on charges of losing his uniform. At the trial, he testified that, being drunk, he sold his uniform to the merchant's son Alexei Antipin.
What decision should the court make?
According to chapter 6 art.59 AB. subject the soldier of the Rostov regiment Nikita Bobylev to punishment with gauges and payment of the value of the lost property.
To oblige the merchant's son Alexei Antipin to return the uniform he illegally acquired, as well as pay a fine in the amount of triple the cost of the uniform, or, according to the invention of a person, he will be punished with gauntlets.
Extract from the Military Article of 1715.
Chapter 6 article 59 . Whoever has his uniform, loses his gun, sells it or gives it up as a mortgage, he has in the first and suddenly brutally gauntlets, and punished by the patch of the lost, and in the third he will be shot. Likewise, the one who buys from the Saldat, or accepts such things, not only the ones that he accepted or bought, return the packs without money, but also three times what it costs, must pay a fine, or, according to the invention of the person, he will be punished by means of rods.
Interpretation. For weapons are the most important members and methods of Saldat, through which the enemy has to be defeated. And whoever does not save his gun, this bad sign of his saldatism shows, and a little desire to have a sign, so that he can properly exercise his position in battle; For the sake of it, it is proper to eat it with the same cruel punishment, who assists the Saldata in that, for he is thus unfit to repair the Saldata for the service of his sovereign.
Problem number 3
Use the judicial statutes of 1864.
In 1869, in the county town of N, a retired titular councilor P. stole from a collegiate assessor Ch. A bronze candlestick worth 15 rubles. In which court will the case be heard? What decision will the court make?
The transformations aimed at creating market relations required their legal support and protection. It became necessary to bring Russian legislation in line with the legislation of advanced European countries. This could be achieved in the presence of a well-functioning judicial and legal system with a strict separation of powers between all its components. This goal was pursued by the judicial reform of 1864.
Judicial reform is considered the most radical of all reforms carried out by the government of Alexander II. It most vividly reflected the basic elements of bourgeois law.
The main legislative acts that radically changed the system of judicial system and judicial procedure in the country entered into force on November 20, 1864. "Establishment of judicial rulings"(bodies) - the law on the judiciary; "Charter of Civil Procedure", determined the order of the civil procedure; "Charter of criminal proceedings" the law on criminal procedure; and "Charter on Punishments Imposed by Justices of the Peace" - the code of substantive law, which should have been guided in their law enforcement practice by justices of the peace.
The main principles on which the new judicial system was built are as follows: 1) separation of the judicial power from the administrative one; 2) independence and irremovability of judges; 3) the all-estate of the court, that is, the introduction of a single court for all estates and equal responsibility of all estates before the court; 4) the law at the heart of the activities of the courts; 5) publicity, adversarial nature and orality of judicial proceedings; 6) collegiality in decision making. The essence of these principles was briefly expressed by the royal decree to the ruling Senate on promulgating new laws and on their implementation. "We wish, - it said, - to establish in Russia a court of speed, right, merciful and equal for all our subjects, to elevate the judiciary, to give it proper independence and, in general, to establish in our people that respect for the law, net of which social welfare is impossible and which should be a constant leader of the actions of each and every one , from the highest to the lowest. "
Judiciary
The old judicial system, which was basically created under Catherine II and reorganized in 1801, was cumbersome and ineffective, and did not meet the requirements for it for a long time. There were county courts for all estates (county zemstvo court for noblemen, county reprisals for state peasants, city magistrates for townspeople). Instead of the abolished second-tier courts (at the provincial level), chambers of the criminal and civil courts operated in the provincial centers, and which could be appealed against the decisions of the lower instance. In addition, court courts for nobles and officials operated in the capitals. The entire system was headed by the Senate as the highest court. There were also special courts: military, spiritual, commercial. In conscientious courts, where two representatives from each class sat, inter-class disputes were considered.
The plurality of judicial bodies, their class character, lack of clarity in determining the jurisdiction of cases gave rise to the complexity and confusion of procedural norms. In 1864, the old judicial system was abolished, and the new judicial system introduced by the "Institution of Judicial Institutions" took the following form. It consisted of 2 structures: 1) local courts(for solving insignificant cases) - volost and peace ", 2) general courts, which included District Court and Trial Chamber. At the head of the judicial system was Senate.
Magistrates' Courts were established in order to relieve the main link - general courts - from insignificant cases. The model for them was the Magistrates' Court in England, where the government appointed "respected and respectable people" from the local population to the posts of justices of the peace, who did not receive a salary for their labor. But in Russia, justices of the peace were elected by zemstvo district and city self-government bodies(Zemsky Assembly and City Duma) and approved by the Senate. A person who met certain qualification requirements could become a judge of the peace: age(at least 25 years old), education(higher or secondary), settled(who has lived for at least 2 years in the area), has at least 3 years of experience in the judiciary, and taxing property(property qualification). It could be land - from 400-1600 dessiatines in different provinces, real estate or capital from 15 thousand rubles of annual income.
The area of activity of the magistrates' court was world district(county with cities), divided into plots. The district magistrate received for his work a small salary from the zemstvo fees. The elected magistrate refused the salary, he was awarded the title honorary magistrate. He could continue to manage the precinct, or he could consider cases in the absence of the district police officer or at the request of the victims. Retired military and state officials, former high-ranking judicial officials (senators and chairmen of the court chambers), county and provincial leaders of the nobility also became honorary magistrates.
Jurisdiction of civil cases in a mirone court was determined by the cost of the claim. Cases for which the damage did not exceed RUB 500 From criminal cases of world jurisdiction were subject to cases of misconduct against public order, personal insults and thefts up to 300 rubles.). In these cases, justices of the peace, according to the "Charter on punishments imposed by justices of the peace", could do remarks, reprimands, monetary penalties(for an amount not exceeding 300 rubles), arrest(up to 3 months) and imprisonment(for a period not exceeding 1 year).
The main goal pursued by the magistrate's court is reconciliation of the parties. The magistrate acted in it both as an investigator and the sole arbiter of the case, and the investigation and the court were carried out simultaneously and, as a rule, in one session. The judgment of the magistrate was considered final, except for the decision on imprisonment, that is, it was not subject to appeal by way of appeal. Incomplete verdict(about imprisonment) could be appealed in the second instance - convention of justices of the peace.
The congress (in a session of 3 judges) reviewed the case on the merits. This meeting was attended by the assistant prosecutor of the district court, who gave an opinion on the case on the basis of the statutes of civil and criminal proceedings. The verdict of the district judge could be approved or revised within the limits of the revocation (that is, the statements of the party appealing it). The verdict of the congress of justices of the peace was considered final and could only be appealed on appeal in the Senate.
The magistrate of the district himself carried out the sentence, resorting, if necessary, to the help of the police. All office work in the magistrates' court (petitions, statements, responses, etc.) was conducted on plain paper and without any duties, as was the production itself, which was absolutely free.
In 1889, the institute of justices of the peace underwent some reorganization. They remained only in the capitals, and locally, in 43 provinces, their functions were transferred to zemstvo chiefs and city judges, who combined judicial and administrative powers. The second instance was the county congress of zemstvo chiefs, which was attended by all members of the district court and city judges. The congress was headed by the marshal of the nobility. The cassation instance for such a court moved from the Senate to the Provincial presence. But after the reform of P.A. Stolypin in 1912, the magistrates' courts were restored. The revival of this judicial institution began in our time, from the end of 1998.
District Court and Trial Chamber. Anything that exceeded the jurisdiction of the magistrate court was subject to the jurisdiction of the general courts. The main instance here was district Court. It was established, as a rule, one per province or united several counties in large provinces. A total of 104 judicial districts were created. The District Court consisted of two departments: civil and criminal cases. In each division, the cases were considered collegially by at least 3 judges. This composition was named crown court. At the same time, the transfer of members of the court from one department to another was practiced.
The Criminal Division, in addition to the Crown Court, included jury trial. Especially serious cases, cases of crimes that entailed punishment in the form of deprivation of all rights of the state. All other cases were tried by the crown court.
The second instance in general jurisdiction was judicial chamber, one for several provinces. They were created 11, then their number increased to 14. It was divided into departments of criminal and civil affairs, which were headed by the chairmen. The Trial Chamber acted as court of first instance for cases of state crimes and crimes of officials. When considering such cases, the presence of estate representatives(leaders of the nobility, city heads and volost elders).
Like a court of second instance the trial chamber considered on appeal decisions and sentences of district courts (on complaints of the parties and on protests of prosecutors). She also exercised general supervision over the activities of the district courts.
In the late 1880s. As a reaction of the authorities to the revolutionary terror, cases of political crimes and terrorist acts were removed from the jurisdiction of the judicial chambers and transferred to the Senate (Special Presence), and cases of armed resistance to the authorities, attempts on the life of officials were brought under the jurisdiction of military justice. The role of the gendarmerie has increased in carrying out investigations into political cases and terrorist acts. Thanks to these and other measures, terror was neutralized, but in the 1890s. the ideology of individual terror of Russian revolutionaries was replaced in Russia by the ideology of class terror - Marxism. The old methods of struggle were ineffective.
Senate stood at the head of the judicial system. He served the role cassation instance and, like a judicial chamber, was divided into 2 departments, criminal and civil cases. The Senate was located in St. Petersburg and received complaints from the parties and protests from prosecutors against final sentences. The Senate was also declared the highest judicial oversight body for all newly created judicial bodies (rulings).
Institute of judges. The law stipulated that only Russian subjects but only lawyers with specialized education(with certificates of universities or other higher educational institutions about the completion of the course of legal sciences or "passed the exam in these sciences"). They should have had work experience for the judicial part in the ranks not lower than the clerk of the district court for 3 years or a sworn attorney (attorney) for 10 years, with excellent characteristics from the place of service ("certificates of accurate, serviceable and impeccable performance of their duties"). University graduates could be appointed to the position of a judge if they served in judicial positions for 4 years candidates and have reached the age of 25. This service was free. Only fairly wealthy people could acquire a candidate's experience. But there was no property qualification for judges in office, who received a very decent monetary remuneration for their work.
The law equated judicial activity with public service. Judges moved up the career ladder (district judge, assistant chairman of the district court, chairman of the district court, member of the department of the judicial chamber, senator, etc.). They were awarded orders and received state pensions upon retirement. The rights and privileges conferred on judges also belonged to their families. On assuming office, the judges brought oath of allegiance to the emperor, who confirmed their appointment, and pledged to sacredly fulfill the law. Guided by the law, the judges did not have the right to interpret it, but they could rely on dictates of conscience. The judges pledged to act impartially and respect the dignity of the defendant.
However, the position of judges differed from that of other officials of the empire in one important circumstance. Law enacted the principle of the irremovability of judges. Only a criminal court could remove a judge from office. All other cases are own resignation letter. Was not limited and ultimate age judges. In the event of a serious illness, the judge was given a year to recover. Only after this lapse could resignation be followed without a petition. Irremovability was the main guarantee of the independence of judges from the administration.
The judge should have possessed high moral qualities. The law forbade to hold judicial positions for people under investigation or trial, convicted, expelled from service by court, from the clerical department for vices, from societies or noble assemblies according to the sentences of those estates to which they belonged. Insolvent debtors and those under guardianship for extravagance could not become judges.
For their actions, the judges carried responsibility: disciplinary(reprimand, remark, warning, arrest for 7 days, transfer to a lower position), material(pay deduction) and criminal. Introduced and procedure for challenging judges parties for reasons of material or other interest in the case or because of family ties.
Among the documents of judicial reform, the Charter on punishments imposed by justices of the peace occupies a special place.
If the first three laws regulating the judicial system and legal proceedings form the basis of the reform, determine its content, then the fourth, regulating material legal relations, stands alone, does not fit into a rather harmonious and logically complete triad.
Least explored. The Charter was subjected to the most fierce criticism of specialists, mainly practitioners, figures of world justice. This - of the four the smallest in volume (it makes up less than 6% of the total volume of judicial charters) - some of its interpreters did not bother to read the law, apparently, otherwise it would not be possible to explain the allegations that it reflected the issues of the judicial system and legal proceedings related to organization and activities of the magistrates' court. The erroneousness of such a statement is already visible on a cursory glance at the text of the Charter. However, there are questions, the answers to which do not lie on the surface. Among them is the question of the nature of the acts provided for by the Charter. Researchers write about this in different ways, there was no unity in this and among its compilers.
The question of distinguishing between crimes and misconduct was raised in the legislative ideology and practice of the Russian Empire back in the 18th century. Catherine II, in the first Addendum to the Great Instruction of the Legislative Commission of 1767, expressed the idea, borrowed from Montesquieu, that "one should not confuse a great violation of laws with a simple violation of the established deanery: these things should not be put in the same row." In the first case, the court determines the punishment on the basis of laws, in the second, the police carry out the correction, guided by the statutes. This idea was embodied in the Charter of the Deanery, or Police Officer, of 1782, according to which persons who committed significant offenses were sent to court to determine their punishment, and for minor violations, the final decision was made by the police. A practical distinction between crime and misconduct is already outlined here. It is no coincidence that the pre-revolutionary policemen called the last two chapters of the Charter of the Deanery the police punitive code.
The draft Statute on the St. Petersburg Police, drawn up in the II Department of his own Imperial Majesty Chancellery under the leadership of M. M. Speransky, included a special part "On the Police Court", which provided for liability for "minor crimes and misdemeanors against the deanery." However, the Council of State, to which the draft was presented, did not approve this part of the Regulation, recognizing that such an issue should be resolved in the general revision of criminal laws.
By the time the general codification of Russian criminal law was carried out, in the second quarter of the 19th century, European practice had accumulated quite a lot of experience in drafting criminal codes. This experience was studied by Russian codifiers. Thus, the French Criminal Code of 1810, which was exemplary for bourgeois society, was studied, in which criminal acts are divided into crimes, misdemeanors and police offenses. Crimes and misdemeanors in the text of the code were not delimited and differed only in the type and degree of punishment. Police offenses were highlighted in a separate (fourth) book.
In the imperial rescript of June 5, 1811, crimes were divided into three degrees, also according to the type and severity of punishments: for committing a crime of the first degree, the perpetrator was subjected to civil death or hard labor, the second - to exile to Siberia for settlement or consignment to military service, the third - light corporal punishment with recourse to the former place of residence or detention in restraining and work houses. In subsequent legislation, such a distinction occurs only once - in the decree on February 14, 1824.
The division of crimes into criminal and unimportant and misdemeanors, generally accepted for Russian legislation of that time, was recorded in the first edition of the Code of Criminal Laws, in Art. 1 of which a general concept of crime is given as any act prohibited by law on pain of punishment, and in Art. 2 provides a definition of minor crimes and misdemeanors (as opposed to criminal offenses) as acts prohibited on pain of light corporal punishment or police correction. Various kinds of statutes contained in so. XIII, XIV of the Code of Laws provided for numerous violations, followed by punishments imposed by the police.
When preparing the Code of Penalties and Correctional Punishments of 1845, the issue of creating two independent codes was specially and in detail considered - on crimes subject to consideration by a criminal court, and on misconduct, which would be directly and finally considered by the police authorities. Despite the fact that the compilers were aware of the practical importance and benefits of such a division, this issue was not positively resolved. In a single Code, the distinction between crimes and misconduct, as you know, was carried out on the object of encroachment, as well as on the opposition of statutes and laws containing rules (however, in practice, a clear line was not drawn between these normative legal acts). There is no consistent distinction between crimes and misdemeanors in the Code of Criminal and Correctional Punishments of 1845. Moreover, the Code included many offenses provided for by various kinds of statutes that contained norms on punishments applied by the police. This circumstance, on the one hand, further obscured the distinction between crime and misconduct, and, consequently, between criminal and administrative responsibility, but, on the other hand, led to the release of the police from judicial functions, i.e., to further separation of the court from the administration. ... It was this consideration that prompted the drafting of a separate code of minor crimes and misdemeanors.
Back in 1814, in a note presented by Count VP Kochubey to Alexander I, the question was raised about the separation of the judiciary from the police institution in the districts of "peaceful" judges who would deal with disputes and litigations, guided mainly by conscience and common sense. This note drew attention to the secret "committee of 1826", created to analyze the papers of the deceased emperor. In 1834, the Minister of Internal Affairs D.N.Bludov proposed to create special police courts for the consideration of minor crimes, in which the cases of peasants and urban lower classes would be considered. Later, while preparing the judicial reform, DN Bludov will come to the conclusion that it is necessary to create magistrates' courts to consider small cases and a special code for them.
At the beginning of 1859, a special commission consisting of members of the Council of State, considering the report of the Ministry of Internal Affairs for 1857, drew attention to the low detection rate of crimes, as well as to the slowness of consideration in courts of cases of minor crimes, for which, due to the need to observe all the rituals and the form of legal proceedings, the same for all criminal cases, a large number of persons sentenced to "light correctional punishment" are kept in custody for a long time. The pre-trial detention of these persons was a heavier punishment than the penalty to which they were sentenced. "Meanwhile, these prisoners, while in prison, lose the rest of their morality and burden the treasury with their useless maintenance," the commission's journal noted. The commission proposed to single out minor crimes and misdemeanors, the consideration of which would be carried out by the "judicial-police, or abbreviated order" 1. Thus, a new impetus was given to the organization of a magistrate court and to the compilation of a code of minor crimes and misdemeanors, which coincided with the preparation of the peasant, police, zemstvo and judicial reforms.
In April 1859, the opinion of the commission was heard in the Council of Ministers, chaired by the emperor. On his instructions, the proposals of the commission were transferred to the chief manager of the II department of the imperial chancellery, Count Bludov, where at that time a draft of a new Charter of criminal proceedings was being considered.
At the same time, since March 1859, a commission was operating under the Ministry of Internal Affairs to prepare a draft of a new structure of provincial and district institutions. When discussing in it the question of how to implement the principles of separation of the judiciary from the executive in October 1859, it was noted that in the annex to Art. 4133 Provincial institutions (vol. P, part 1 of the Code of Laws of the Russian Empire in 1857) lists 55 articles of the Code on criminal and correctional punishments, which provided for punishment for misdemeanors, subject to the consideration of the metropolitan deanery boards. Responsibility for these offenses did not depend on the class of the perpetrators. This appendix sparked the idea of creating a Charter of Minor Offenses and became its basis. At the same time, the draft Statute on rural commune courts in the Kingdom of Poland was considered, in Art. Art. 622–813 of which “the most insignificant offenses” and punishments for them were recorded in a systematic manner.
The commission decided to select from the Code of Criminal and Correctional Punishments those articles that, in its opinion, related to the actual misconduct, and from these articles to draw up a special charter, which could be guided by justices of the peace. 652 articles were extracted from the Code on Punishments of the 1857 edition, which provided for minor crimes and misdemeanors. This extract was submitted to the Council of State on April 30, 1860 as the 8th supplement to the draft on county institutions.
The next stage in the development of the Charter, which was initially called the forensic police, was the preparation in the II Department of the Imperial Chancellery of materials compiled both from the articles of the Code of Criminal and Correctional Punishments and from other normative legal acts that provided for minor offenses. These offenses were followed by insignificant penalties, they were attributed to the category of police misconduct proper, requiring prompt consideration. The materials, which included 606 articles, were the main basis for the preparation of the code of misconduct.
However, the completion of the preparation of the documents on the peasant reform delayed the drafting of the judicial statutes. After the abolition of serfdom, this work resumed. In May 1861, Alexander II ordered the II Department to draw up "a draft Charter on penalties for misdemeanors subject to justices of the peace." But, as already noted, this work in January 1862 was transferred from the II department to the State Chancellery, where the principles of the judicial system and legal proceedings were already being developed. In April 1862, notes on the basic principles of civil and criminal proceedings were submitted to the Council of State, at the direction of the king, they were discussed in the united departments of laws and civil and spiritual affairs. In the "considerations" drawn up as a result of the discussion of the basic principles of criminal proceedings, it was proposed to transfer all cases of crimes and misconduct to the jurisdiction of the magistrates' courts, which are initiated only on the basis of complaints from individuals and can be ended by reconciliation of the parties. It also provided for the possibility of sentencing persons not exempted from corporal punishment for unimportant crimes to a fine of up to 15 rubles. At the same time, the question arose again about the need to draw up a special charter on crimes subject to the department of justices of the peace, which was motivated by the fact that without such a charter it would be difficult for the bodies of inquiry, investigation and the court to determine the jurisdiction of cases. Particular difficulties were seen in the fact that jurisdiction was determined not so much by the nature and type of crimes or misdemeanors as by the punishments provided for them.
Alexander II, having approved the Basic Provisions of Criminal Procedure, instructed the chief governor of the 11th department of the Imperial Chancellery to accelerate the development of the Charter on Crimes and Misdemeanors, subject to the department of justices of the peace. In Art. 19 of the Basic Provisions of Criminal Procedure was envisaged to include in the charter: 1) less important crimes and misdemeanors, for which the laws define reprimands, remarks and suggestions, monetary penalties within three hundred rubles, arrest up to three months or punishments substituting for it; 2) private prosecution cases;
3) theft, fraud, logging, appropriation of found things and other similar crimes committed by persons who were subject to imprisonment in a working house for these acts.
When developing the Charter in Section II, the question arose whether it should be divided, like the Code of Criminal and Correctional Punishments, into general and special parts. Bearing in mind that the absence of a common part can lead to the arbitrariness of the magistrate's court and that, moreover, sole magistrates may not have a solid legal education, the drafters decided to preface the charter, following the example of many foreign judicial and police codes, the general part, but not to develop it as detailed as in the Code of Punishments, since the misdemeanors included in the Charter are mostly insignificant and do not allow the application of the rules on attempt, complicity, intent, etc., defined mainly for more serious crimes. As a result, it was decided to limit the general part to one introductory chapter, in which, without going into details, define the basic rules relating to the criminal act and punishment.
The draft Charter on penalties for misdemeanors subordinate to justices of the peace, drawn up in Section II, consisted of 206 articles, of which the first 27 related to the general part, the rest 179 to the special one. The first article of the draft said that justices of the peace determine punishments only for those offenses that are named in this Charter. The explanatory note indicated that the draft was drawn up on the basis of the Code of Criminal and Correctional Punishments, the Rural Judicial Charter was partially used, however, the specifics of the Charter for Justices of the Peace, as well as the conditions, views and needs that have changed since the publication of the Code of Punishments, forced the authors of the project to deviate from the system and the content of the general criminal code, "in defining the offenses themselves, it was deemed necessary to mark not all the criminal cases encountered so far, but, if possible, combine them and bring them under general rules." So, it was rightly noted that the draft greatly simplified the rules on cancellation, increase and mitigation of punishment.
From the end of December 1863, draft judicial statutes were discussed at the Ministry of Justice. The draft Charter on penalties for misdemeanors under the jurisdiction of justices of the peace did not receive much attention. From the comments on it, the written arguments of Prince Shakhovsky about the all-estate jurisdiction of the magistrates' courts and the equality in their determination of punishments stand out.
- On March 3, 1864, the first three documents of judicial reform were transferred from the commission at the State Chancellery to the State Council, and there, on March 4, their discussion began, first in the expanded composition of the united departments of laws and civil and spiritual affairs, and then in the general meeting. 11th department prepared by him a draft of the Charter on penalties for misdemeanors, subordinate to justices of the peace, submitted to the State Council only on May 15. It was no longer possible to discuss it in the commission under the State Chancellery, where the drafts of the first three laws were developed, for agreement with them, and all four drafts were discussed in the State Council at the same time. But if the first drafts, especially the statutes of criminal and civil proceedings, were considered in great detail, then this cannot be said about the draft Statute on penalties. Of the more than 30 meetings of the combined departments, attention was paid to only two (July 1 and 9). Yes, and the discussion concerned mainly editorial issues, minor adjustments were made to the sanctions of some articles. Did not have a charter and public resonance. However, as the pre-revolutionary researcher noted, all judicial statutes were developed without the direct participation of not only broad strata of the people, but even enlightened public circles. . True, modern authors note a certain public participation in the preparation of judicial statutes.
- On September 30, the Charter on penalties was reported at a meeting of the Council of State, where it also did not undergo significant changes, and on November 20, 1864, along with other documents of judicial reform, it was approved by the emperor as "Charter on punishments imposed by justices of the peace."
Judicial charters were admired not only by their creators and inspirers, but also by progressive judicial figures who noted their high mission, who considered them a big step in the liberalization of the judicial system, its comprehensive improvement in accordance with the new socio-economic conditions in the country. The judicial statutes "were the fruit of a lofty labor, imbued with the consciousness of the responsibility of their compilers to Russia, which thirsted for justice in its real meaning and manifestation," wrote A. F. Koni1.
The regulations on punishments were bourgeois in spirit, favorably distinguished in essence and content from the feudal Code on punishments, and even more so from the old police regulations. Its adoption led to a significant revision of the old criminal legislation, in particular, 652 articles were removed from the Code on criminal and correctional punishments, including the 1st and 2nd, which determined the crime and misconduct.
Of course, the Charter was not devoid of shortcomings, feudal features. So, even after the publication of the Basic Provisions of the Transformation of the Judicial Branch in Russia in 1862, N.P. Ogarev wrote: Deanery administrations, but still they are courts of discord between estates. " Cases under the jurisdiction of the spiritual, military, commercial, peasant and foreign courts were removed from the jurisdiction of the magistrates' courts. Thus, the multimillion peasant class was forced to sue in a very significant range of cases in their volost courts.
The approved Charter on punishments imposed by justices of the peace consists of an introductory chapter containing general provisions, and subsequent 12 chapters, in 153 articles of which unlawful acts and punishments for them are systematically determined. Three chapters are divided into sections, some articles into paragraphs and parts. The original text of the Charter was signed by Prince P. Gagarin, who presided over the State Council, on the first sheet in front of the title there is the usual inscription of the emperor “To be in this way” when the law is approved, the date of approval and place is “Tsarskoe Selo”.
The acts prohibited by the Charter on pain of punishment are called misdemeanors. But can we talk about decriminalization of a large number of crimes previously provided for by the Code on penal and correctional punishments? The severity of the punishment following these "offenses" under the Charter does not allow us to make such a conclusion with good reason. It is no coincidence that these "misconduct" in the Charter are also called "criminal acts", brought to justice for "misconduct" is called a "defendant", he is sentenced, after which he becomes "convicted."
The charter is replete with reference and blanket rules. Whole chapters define penalties for violations of other statutes (on passports, construction and communications, fire, postal and telegraphic), while specific articles of the statutes are often not indicated. This created significant inconveniences in using the Charter and in practice often led (“if not in most cases”) to the fact that the judges did not give a specific legal qualification of the act for which they determined the punishment. Therefore, subsequently the Charter was also issued with the annexes of the normative legal acts mentioned in it.
V.P. Bezobrazov, admiring world justice and legislation on judicial reform in general, notes that the Charter on punishments imposed by justices of the peace is an exception from what he said about judicial charters, it seems to have been handled with a different hand, much less experienced and prudent. ... The main drawback of the Charter, in his opinion, is the too weak development of its individual parts. Some groups of crimes are very poorly developed, others, including those very often encountered in practice, are not mentioned at all. As an example, he cites articles on drunkenness, which often “have to be applied in practice”: there are only two of them in the Charter, and they in no way reflect the diversity of this phenomenon, its consequences. In the process of applying the Charter, its numerous shortcomings were revealed. Thus, judicial officials raised the issue of a more detailed elaboration of the general chapter of the Charter, in particular, regarding the solution of the issue of the limitation period for the execution of a sentence.
On October 19, 1865, the emperor approved the Regulations on the introduction of judicial statutes, and the Governing Senate was instructed to introduce statutes "in full" during 1866, in ten provinces (St. Petersburg, Moscow, Novgorod, Pskov, Vladimir, Kaluga , Ryazan, Tver, Tula, Yaroslavl). On April 17, 1866, the magistrate's court began to operate in St. Petersburg, on May 17 - in Moscow. The introduction of the magistrate's court, and, consequently, the Charter on punishments imposed by magistrates, throughout the empire lasted for 10 years.
The new judicial bodies were greeted with enthusiasm by the public, and their activities aroused the confidence of the population. They went to the magistrates' courts with complaints of harassment and insults, petty theft and fraud, which previously remained out of sight of law enforcement agencies. Already in 1867, justices of the peace considered 147,651 criminal cases, that is, 430 cases per district judge.
At the same time, the activities of the magistrates' courts were perceived with hostility by the administration (especially the police), headed by governors-general and chiefs of police, accustomed to unlimited power and arbitrariness. On the part of the administrative and police bodies and officials, pressure began on the magistrate's court, a real struggle began against the judicial statutes, which proceeded in latent forms (in Moscow) or acquired the dimensions of a grandiose campaign (as it was in St. Petersburg). Demands were made for the removal of police offenses from the jurisdiction of the magistrates' courts, and the idea of creating police courts in the capital, put forward in the course of the 1862 police reform, was revived. The police, obliged by law to assist the magistrates' courts, in fact often resisted them. The persecutions against the magistrates' court, which, according to A.F. In 1889, justices of the peace in the counties were replaced by zemstvo district chiefs, and in most cities - by city judges, to whom the jurisdiction of the bulk of the acts provided for by the Charter on punishments imposed by justices of the peace passed over. Some of the cases were transferred to the rebuilt volost courts, as well as to the county members of the district court. The capital magistrates' courts remained the stronghold of world justice, although they were limited in their competence. In 1912, the magistrates' courts were restored, although not everywhere, and finally liquidated in the process of breaking down the state apparatus after the Great October Socialist Revolution.
UDC 343.71 (470) (091): 343.71 (470)
THEFT IN MODERN RUSSIAN CRIMINAL LAW AND BY THE CHARTER OF PUNISHMENT IMPOSED BY THE JUDGES OF THE PEACE, 1864: A COMPARATIVE ANALYSIS
© Polyansky A. Yu., 2014
Irkutsk State University, Irkutsk
The paper analyzes the objective and subjective signs of theft, fraud and misappropriation and embezzlement, their delimitation from related unlawful acts in accordance with the Charter of 1864 and the Criminal Code of the Russian Federation.
Key words: theft, theft; fraud; appropriation and waste; Charter on Punishments by Justices of the Peace, 1864
One of the features of the judicial reform of the 60-70s. XIX century. was the fact that with a "radical" change in procedural legislation and the judicial system inextricably linked with it, the criminal-material legislation did not actually undergo any serious changes. The criminal law of this period was characterized by some contemporaries as "thin", "untenable". But even if the existing criminal-material legislation on crime and punishment on the eve of the reform is recognized as sufficiently rational, then all the same, procedural legislation should have undergone a primary change and reform, as it is closer to the vital aspirations of the Russian person.
However, criminal law legislation has nevertheless been reformed, albeit without fundamental changes, in the essence of the fundamental institutions of criminal law - crime and punishment. One of the most interesting innovations in criminal law was the Charter on Punishments Imposed by Justices of the Peace, 1864. This legislative act was a criminal code, which contained decrees "on relatively less important criminal acts subject to the jurisdiction of sole judges." It was published in conjunction with the judicial statutes on November 20, 1864 and represented a special part of them. How
specifies NP Timofeev, if the Charter and occupies an insignificant place in the general system of judicial charters, it is only because "very few cassation decisions are given to clarify it." In the opinion of, for example, ND Sergeevsky, this charter was a significant step forward compared to the Code on Punishments of 1845, since it had much clearer dispositions of the articles. However, opinions on the Charter of his contemporaries and today's researchers of the history of law do not agree on everything. According to M.I. The charter was severely criticized by some contemporary lawyers.
The need to create a statute on minor criminal offenses was predetermined by the continuing uncertainty in the specified period in the delimitation of crimes and criminal offenses. In the first quarter of the XIX century. attempts to distinguish between crimes and misconduct at the official level are found in two normative documents - in the imperial rescript of June 5, 1811 and in the Decree of February 14, 1824. In the first document, all crimes were divided into three degrees according to the type and severity of punishments: for committing crimes of the first degree
the culprit was subjected to civil death or hard labor, the second - exile to Siberia for settlement or consignment to military service, the third - light corporal punishment with recourse to his previous place of residence or detention in restraining and work houses. We find a similar kind of distinction in the aforementioned Edict. In 1859, a special commission of the State Council was created, which proposed to single out minor crimes and misdemeanors, the consideration of which would be carried out by a judicial-police or abbreviated order. In the same year, the commission for the preparation of a draft of a new structure of provincial and district institutions under the Ministry of Internal Affairs decided to separate from the Code of Penalties and Correctional Punishments of 1845, as amended in 1857, articles providing for minor crimes and misdemeanors. As a result, the Code "lost" 652 articles. Subsequently, articles from other normative legal acts were added to them, and on the basis of 606 articles, the preparation of the future code of misconduct began. In 1862, a draft Charter on penalties for misdemeanors subordinate to justices of the peace was drawn up, consisting of 206 articles, of which the first 27 articles belonged to the general part, the remaining 179 - to the special one.
On November 20, 1864, the Magistrate Punishment Charter was published, where Chapter 13 dealt with some infringements of property, including theft, fraud, misappropriation, and embezzlement. A comparative analysis of these misdemeanors and similar crimes provided for by the Criminal Code of the Russian Federation will make it possible to establish their content and determine their role in the formation of criminal legislation on theft of other people's property.
In Art. 169-172 Sections 3 of Chapter 13 of the Charter on Punishments Imposed by Justices of the Peace, 1864, the following provisions on theft are disclosed: simple and qualified elements of theft, questions of sentencing in the presence of mitigating circumstances and in the case of an unfinished act.
The simple composition is enshrined in Art. 169 of the Charter - for theft of an object worth not more than 300 rubles, the perpetrators are imprisoned for a period of 3 to 6 months.
Thus, in contrast to the currently existing concept of theft, given in Part 1 of Art. 158 of the 1996 Criminal Code of the Russian Federation, there is no such sign as secrecy. This is due to the fact that the legislator, limiting himself only to indicating the concept of theft, is guided by the concept that is disclosed in Art. 1644 Code of Penalties of Criminal and Correctional 1845 (as revised in 1866), where theft is understood as anything, in whatever way, but secretly, without violence, threats and generally without circumstances belonging to the property of robbery or robbery kidnapping other people's things, money or other movable property.
By setting in art. 169 of the Charter of 1864, only the amount of damage (the cost of the subject of theft), which cannot exceed 300 rubles, the legislator identifies the composition of theft with a lower degree of public danger than according to the Code of 1845, and refers this unlawful act to the jurisdiction of justices of the peace.
For the correct resolution of the case by the court, when determining the amount of damage, the value of the stolen items must be determined and reflected in the verdict, since this circumstance may affect the amount of the punishment.
When analyzing the signs of the theft, it is necessary to be guided by Art. 17 of the Charter of 1864, which determines the moment of the end of the offense in question - the other person's thing must pass into the possession of the thief or must be considered passed into his possession, it does not matter whether the thief managed to get a benefit or other benefit from this thing. Thus, similar to the legislation of that time, the moment of the end of the theft is associated with the emergence of the perpetrator of the opportunity to use or dispose of someone else's property.
The Charter on Punishments Imposed by Justices of the Peace, explained by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871, lists the acts falling under the signs of theft and, along the way, attempts to differentiate them from related crimes and misdemeanors. In particular, it provides for liability under Art. 169 of the Charter for stealing other people's livestock and slaughtering it in order to use meat, appropriation of a lost thing by a witness
losses if the owner of the item is known. These clarifications are essential, since they determine that only someone else's property can be the subject of theft.
It is also indicated that theft of documents, including theft of a savings bank book, does not fall under the considered unlawful act. This is contrary to the current criminal legislation, where the commission of secret theft of bearer securities entails criminal liability under Art. 158 of the Criminal Code of the Russian Federation.
Qualified theft compositions are enshrined in Art. 170 of the Charter under consideration, for their commission there is a sanction in the form of imprisonment for up to one year: 1) when the theft is committed in a church, chapel or other prayer house (but not church property and without insulting a shrine), or in a cemetery, or from the dead but without digging graves; 2) when the theft is committed at night; 3) when in order to commit theft, the perpetrators climbed into a window, climbed over a wall, fence or other fence, or entered the house under a fictitious pretext; 4) when something necessary for the food of the person to whom it belonged was stolen, and the guilty party knew about it; 5) when the theft was committed by agreement of several persons, but without forming a special gang; 6) when the theft is committed in public places or in crowded gatherings; 7) when the theft is committed by servants, workers, apprentices or other persons living with the person whose property was stolen (however, without agreement and community with other people brought in for this); 7) when the theft was committed by a person who was once convicted of theft or fraud.
Thus, only two of the eight listed qualified circumstances are enshrined in the current criminal legislation. So, the composition of the misdemeanor provided for in paragraph 3 of Art. 170 of the Charter on criminal punishments imposed by justices of the peace, 1864, is similar to clause "b" part 2 of Art. 158 of the Criminal Code of the Russian Federation “theft committed with unlawful entry into the premises or other storage facility” and paragraph “a” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation "theft committed with illegal entry into the home."
The Charter also stipulates that entering a house under the pretext (deception) and
subsequent commission of theft entails criminal liability under Art. 170 of the Charter. It is expressly provided here that the use of deceit to enter someone else's dwelling for the purpose of taking possession of someone else's property is not fraud, since deception in this case is not a method of seizing property, but only facilitates access to this property. At present, this circumstance is not reflected in the text of the criminal law, therefore, in law enforcement practice, errors arise with the qualification of theft committed with penetration into someone else's living quarters by deception, despite the presence of a corresponding explanation in the acts of official interpretation.
In addition, in modern Russian criminal law, another qualified theft has been preserved - theft committed by a group of persons by prior conspiracy. The gang was a form of complicity, in which the perpetrators had a preliminary conspiracy to commit several illegal acts. Thus, the gang in its criminal-legal meaning is closer to an organized group.
Consequently, the indication in the Charter of 1864 to the absence of a "special gang" implies that criminal liability under Art. 170 comes for persons who have previously agreed to commit only one theft.
In Art. 171 of the Charter of 1864 fixed the circumstances in the presence of which the punishment for theft, established by Art. 169, 170 of the Charter, can be reduced by half, that is, to the lower limit of one and a half months in prison. Such circumstances include: voluntary return of stolen property to the owner, committing theft "out of the extreme" and in the absence of work and livelihood, and if the value of the stolen does not exceed 50 kopecks. ...
The clarifications to the Charter indicate that the presence of one of the above circumstances does not entail an unconditional reduction of punishment, its application is at the discretion of the court.
From the point of view of modern criminal law doctrine, theft is committed from the "extreme" and in the absence of work and livelihood and voluntary
the return of the stolen property to the owner is close in content to those enshrined in Art. 61 of the Criminal Code of the Russian Federation to circumstances mitigating punishment: the commission of a crime due to difficult life circumstances (clause "b", part 1 of article 61 of the Criminal Code of the Russian Federation) and voluntary compensation for property damage to the victim (clause "k", part 1 of article 61 of the Criminal Code of the Russian Federation ) respectively.
Of greatest interest for comparing the composition of theft under the Charter of 1864 and the current Criminal Code of the Russian Federation is the following circumstance - the cost of the stolen does not exceed 50 kopecks. (causing damage in an amount not exceeding 50 kopecks.).
Modern legislation does not provide for criminal liability for petty theft, when committed with a specific intent, the owner or other legal owner of the property is inflicted property damage in the amount of not more than 1 thousand rubles, i.e., due to its insignificance, it does not pose a public danger.
From the Charter of 1864 it follows that there is no minimum amount of property damage that can be caused by theft. Thus, theft of property worth no more than 50 kopecks. does not exclude liability due to the insignificance of the act and, by its nature, is a mitigating circumstance that allows the court to reduce the punishment for the committed act by half.
In Art. 172 of the Charter of 1864 provides for a rule giving the court the right to reduce the punishment in the form of imprisonment in half for attempted simple or qualified theft. Consequently, these provisions are similar in nature to the specifics of the imposition of punishment for an unfinished crime, enshrined in Art. 66 of the Criminal Code of the Russian Federation.
The next form of theft under the Charter of 1864 is fraud, the responsibility for which is provided for in Art. 173-176 divisions 4 chapters 13. So, in accordance with Art. 173 of the Charter of 1864 for measuring and weighting when selling, buying or exchanging goods or other things, as well as for other deceptions in the quantity and quality of goods, in the calculation of payments, when changing money, when the amount of damage does not exceed 300 rubles, the perpetrator shall be punished by imprisonment for a term of 1 to 3 months. In addition, liability for fraudulent
stipulated by Art. 174 of the Charter of 1864, where a similar sanction is applied for making a substitution of things entrusted to the guilty person for storage, transportation, carrying or delivery, luring money or things through the message of false news or under the guise of profitable enterprises, imaginary expenses on some business, charitable donations or in another fraudulent way, receipt of payment of a debt with non-return of a letter of loan, a bill of exchange, a receipt or an invoice signed by the buyer with the intention to re-demand the paid, failure to repay the mortgage provided to secure the loan, lease or temporary use of someone else's movable property in order to receive due for hiring money or obtaining other illegal benefits.
According to the Clarifications to the Charter of 1864, the offenses under Art. 173 of the Charter of 1864, include deception in the sale of a worthless horse, the sale of sleeping tea under the guise of a real one, concealment of money received as a deposit and denial of receipt of it, sale of drinks from unmarked dishes, etc.
Thus, in comparison with the current version of Art. 159 of the Criminal Code of the Russian Federation in these articles there is no concept of fraud; the legislator limited himself only to the enumeration of acts that, by their nature, in one way or another fall under the considered composition of the misdemeanor.
The cited version of Art. 173 and 174 of the Charter of 1864 indicates an attempt by the legislator to determine the jurisdiction of justices of the peace in cases of fraud and to distinguish these acts from other misdemeanors.
The lack of a single concept of fraud, on the contrary, creates difficulties in the process of qualifying crimes. Not all described acts contain an indication of the inherent method of fraud - deception. This approach of the legislator does not sufficiently disclose the essence of fraud, makes it difficult to understand the mechanism of taking possession of someone else's property.
In paragraph 7 of the Clarifications to Art. 173 of the Charter of 1864, a definition of deception is given, which means the seller's silence about unnoticed defects in the goods (passive deception), the seller's message about the availability of the quality of the goods, which
is absent in reality (active deception), the seller commits actions aimed at hiding the defects of the goods from the buyer (active deception in actions). Thus, it is necessary to note the uniqueness of the given concept of deception, since in its content it corresponds to the concept that was formed by modern judicial practice. For a century and a half, only the wording of the considered method of fraud has changed, the content component has not undergone any major changes.
The concept of deception under the Charter of 1864 cannot be considered in isolation from clause 11 of the Clarifications to Art. 174 of the Charter, which states that the seizure of someone else's property is carried out precisely by deception, that is, when the owner transfers the property to the guilty person, believing that the latter has any right to this property, or hoping that such a transfer will be beneficial for him. Thus, the fact of the transfer of property by the owner is due to the arisen influence of delusion as a result of the influence of the guilty person on the owner by reporting false information, omitting certain information or committing active fraudulent actions. A similar approach has developed in modern judicial practice, which makes it possible to distinguish fraud from related offenses, in the process of which deception is also used.
However, not every deception by its nature can be considered as a sign of the objective side of the fraud provided for by the Charter of 1864. From the content of the Explanations to Art. 173 and 174 of the Charter of 1864, it follows that the punishment is to be imposed only on such a person who had an intent to commit fraud before the transfer of property by the legal owner. The presence of the guilty intention to take possession of someone else's property by deception is evidenced, for example, by the commission of secret preparatory actions by the seller, which would give the goods imaginary qualities or dignity, or hide the existing shortcomings, the creditor's failure to return the loan obligation to the debtor, when the intention is to re-claim the debt, expressed in another representation of a debt obligation to be collected, etc.
Nothing is mentioned in the text of the Charter of 1864 about the second method inherent in the modern composition of fraud - the abuse of trust. Nevertheless, the seizure of property entrusted for known use is recognized as fraud, when the guilty person with a mercenary purpose, using a trust relationship, receives another's property and turns it into his own favor.
Thus, based on the analysis of the text of the Charter of 1864, the norms on fraud, although they do not contain its specific concept, but, according to the Explanations to the Charter, objective and subjective methods of deception were identified in law enforcement practice, which served as criteria for distinguishing fraud from related offenses. crimes and violations of civil law. Given the fact that the modern concept of deception has largely adopted these signs, from the point of view of historical value, the publication of the Charter of 1864 and the Clarifications to the Charter of 1864 made a significant contribution to the development of domestic legislation on criminal liability for fraud.
To the qualifying circumstances, in the presence of which Art. 175 of the Charter of 1864 provides for punishment in the form of imprisonment for up to six months for the commission of acts enshrined in Art. 173 and 174 of the Charter of 1864, include: the perpetrator was previously convicted of theft or fraud (paragraph 1); committing an act by agreement of several persons (clause 2); special preparation for deception (p. 3); the guilty person has special confidence due to his knowledge, place or other attitude towards deception (clause 4); the victim of fraud is a minor, elderly, blind or deaf-mute (p. 5); the use of superstitious rituals (p. 6); the guilty person pretends to be an attorney or servant, assignment of a false name (clause 7).
In the rules on fraud under the current Criminal Code of the Russian Federation, two qualifying signs have been preserved: the commission of an act by agreement of several persons (the commission of a crime by a group of persons by prior conspiracy) and the presence of the guilty person's special trust due to his rank, place or other attitude to deception (use of official position ).
The composition of fraud by agreement of several persons (by a group of persons by prior agreement) occurs if at least two persons who can be prosecuted jointly perform actions (inaction) that they have agreed on before the start of the criminal offense.
A fraud committed by a person who has special confidence due to his rank, place or other attitude to deception (using his official position) is characterized by the fact that a certain status of the perpetrator strengthens the confidence of other persons, as a result of which he simplifies the possibility of taking possession of someone else's property through deception.
However, in comparison with modern criminal law, the Charter of 1864 does not explain under what circumstances a person will be held criminally liable: for fraud committed precisely by using the title, place or other attitude to deception, or when the guilty person with the specified status, commits an act under Art. 175 of the Charter of 1864, including not taking advantage of their position. But given that for the imputation of fraud, it is necessary to establish an intent to take possession of someone else's property, which manifests itself in the commission of certain preparatory actions, then in the case under consideration these actions (inaction) must follow from the position of the guilty person.
In addition, the criteria for recognizing a person as guilty of committing fraud under paragraph 7 of Art. 175 of the Charter of 1864. In particular, there is no list of ranks and places in relation to persons who can be recognized as subjects of the offense under consideration, and the use of such a feature as a different special relation to deception is completely at the discretion of the court.
In Art. 176 of the Charter of 1864, the court was given the right to reduce the punishment to half for the acts provided for by Art. 174-175 of the Charter of 1864, in the presence of the circumstances provided for by Art. 171 of the Charter of 1864, considered in relation to the composition of theft.
The norms providing for criminal liability for misappropriation and embezzlement are also provided for in the Charter of 1864 and the current Criminal Code of the Russian Federation.
In Art. 177 of the Charter of 1864, two components of the considered misconduct are fixed. So, for the misappropriation or embezzlement of someone else's movable property entrusted for the preservation, carrying, transportation or certain use, when the damage does not exceed 300 rubles, the guilty person is punished by imprisonment for a period of 3 months to 1 year.
In the event that the embezzlement was committed out of frivolity, and the guilty person voluntarily undertakes to make amends to the victim for the damage caused, then he is subject to arrest for a period not exceeding 3 months.
Embezzlement committed through negligence (through frivolity), from the point of view of modern criminal law science, does not belong to embezzlement, since embezzlement is a deliberate crime and provides for a selfish goal as a mandatory feature.
Therefore, the most interesting are appropriation or waste, which are characterized by a deliberate form of guilt.
For the recognition of unlawful seizure by misappropriation or embezzlement, it is necessary that the property is in the possession of the guilty person on legal grounds for the exercise of the established powers: preservation, transportation, carrying or certain use of movable property.
When distinguishing appropriation or embezzlement from theft or fraud, it must be borne in mind that the property was entrusted to the culprit, and not transferred under the influence of deception or confiscated by him personally. In addition, at the time of the transfer of the entrusted property, the guilty person must have no intent to take it over.
Misappropriation should be understood as a denial from the receipt of property, or a statement that this property has already been returned, transferred to other persons or used for its intended purpose.
The concept of waste is not explained, but there is an indication that the waste of property entrusted for preservation is not theft.
Thus, in contrast to the current criminal legislation, the Charter of 1864 does not provide for a clear distinction between appropriation and embezzlement. Moreover, the assumption of the use of a thing, which can be expressed in its consumption,
expenditure or transfer to other persons, generally confuses the acts in question, since these signs are characterized by waste, not appropriation.
But it is still worth noting that in modern criminal law, the circumstances when property is considered entrusted, as well as the criteria for delimiting appropriation or embezzlement from fraud, are considered in the same way as under the Charter of 1864.
Summing up the above, one cannot but recognize the significance of the Charter on Punishments Imposed by Justices of the Peace of 1864 in the development of Russian criminal legislation on crimes against property. Many objective and subjective signs of the considered offenses have not undergone any changes over a century and a half and were reflected in the norms of the Criminal Code of the Russian Federation exactly in the form in which they were enshrined in the text of the Charter of 1864 and were developed in the judicial practice of the second half. XIX century. AND
1. On the development of criminal-material legislation in Russia, see: AV Naumov. Crime and Punishment in the History of Russia. At 2 o'clock M., 2014; Georgievsky E. V. Formation and development of old Russian criminal legislation. M., 2013; He's the same. The system and types of crimes in the criminal law of Ancient Russia. M., 2013; Georgievsky E.V., Kravtsov R.V. Objective elements and signs of corpus delicti in the criminal law of Ancient Rus // Sib. jurid. vestn. 2013. No. 1. S. 60-64; They are. Subjective elements and signs of corpus delicti in the criminal law of Ancient Rus // Sib. jurid. vestn. 2013. No. 2. S. 64-68; They are. The system of penalties in the criminal law of the ancient Russian state / / Sib. jurid. vestn. 2014. No. 3. S. 73-78; Rozhnov A.A. History of the criminal law of the Moscow state (XIV-XVII centuries). M., 2012.
2. Korotkikh MG Autocracy and judicial reform of 1864 in Russia. Voronezh, 1989.S. 2-3.
3. Poznyshev SV Basic principles of the science of criminal law. General part of criminal law. M., 1912.S. 186.
4. Charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871. SPb., 1872.S. 4.
5. Sergeevsky ND Russian criminal law: a guide to lectures. Part General. SPb., 1890.S. 84.
6. See: Judicial reform. T. 8 // Russian legislation of the X-XX centuries. In 9 volumes. M., 1991.S. 386.
7. Ibid. P. 387.
8. Charter on Punishments Imposed by Justices of the Peace, 1864. SPb., 1867.S. 69.
9. Code on penal and correctional punishments 1845 (as revised in 1866). SPb., 1873.S. 476.
10. Charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871. SPb., 1872.S. 128.
11. Charter on Punishments Imposed by Justices of the Peace, 1864. SPb., 1867.S. 21.
12. The charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department
the title of the Governing Senate for 1866-1871. P. 127.
13. Ibid. P. 128.
14. Charter on Punishments Imposed by Justices of the Peace, 1864. P. 74.
15. The Criminal Code of the Russian Federation: Feder. Law of June 13, 1996 No. 63-FZ // Collected. legislation of the Russian Federation. 1996. No. 25. Art. 2954.
16. Charter on Punishments Imposed by Justices of the Peace, 1864. P. 75.
17. Charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871. P. 132.
18. Charter on Punishments Imposed by Justices of the Peace, 1864. P. 75.
19. Ibid. From 76.
20. Charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871. P. 134.
21 Ibid. P. 135.
22. Ibid. P. 137.
23. Ibid. P. 143.
24. Ibid. P. 137.
25. Charter on Punishments Imposed by Justices of the Peace, 1864. P. 78.
26. Ibid. P. 79.
27. Ibid. P. 80.
28. Charter on punishments imposed by justices of the peace, clarified by the decisions of the Criminal Cassation Department of the Governing Senate for 1866-1871. P. 148.
29. Ibid. P. 147.
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Stealings in Modern Russian Criminal Law and the Charter of the Penalties Imposed by Magistrates of 1864: Comparative Analysis
© Polianskii A., 2014
The article analyzes the objective and subjective signs theft, swindling, misappropriation or embezzlement, their demarcation from the adjacent illegal acts under the Charter of 1864 and the Criminal Code of the Russian Federation.
Key words: stealing; theft; swindling; misappropriation or embezzlement; Charter of the penalties imposed by magistrates of 1864.
"The Charter on Punishments Imposed by Justices of the Peace" is addressed to specific law enforcement bodies - the Magistrates' Courts. Consists of 13 chapters, including 181 articles.
The "Charter on Punishments Imposed by Justices of the Peace" contains a list of punishments for misdemeanors against the order of administration, violation of deanery during the ministry, against public improvement, violation of the charter on passports, the charter of construction and communications, the charter of Pozharsky, the charter of postal and telegraphic, against the public health , personal safety, offenses for insulting honor, threats and violence, against the rights of nepotism, against someone else's property.
Punishments for these offenses could be reprimands, remarks, suggestions, monetary penalties not exceeding three hundred rubles, arrest not exceeding three months and imprisonment for not exceeding one year. Article 2 regulates the additional punishment, which consisted in “taking away the instruments used to commit the offense, or other things belonging to the guilty person” See: Art. 2 "Charter on punishments imposed by justices of the peace" - In the book. "Russian legislation of the X-XX centuries in 9 volumes". T.8. M., 1991, p. 395.
The most common type of punishment is arrest. The difference between arrest and imprisonment was that those sentenced to arrest could be used at work only at their request.
In most articles, arrest and pecuniary punishment are side by side as an alternative, which was calculated on the difference in the property status of the defendants. The poor in this case were arrested, and the rich were more profitable to pay a fine.
The “Charter on Punishments by Justices of the Peace” was the basic code of conduct that defined the penalties that could be imposed by justices of the peace. And the application of punishments under other legal acts had to be consistent with this Charter.
A mitigating circumstance under Article 11 was age: juvenile offenders were reduced in punishment by half, and minors were freed from punishment. If punishment was applied, juvenile offenders were re-educated in special shelters.
An aggravating circumstance was a high social status (Article 14).
A flaw in the "Charter on Punishments Imposed by Justices of the Peace" is a large number of reference norms, as well as the fact that many chapters determine the punishment for violating other charters (on passports, construction and communications, and others). At the same time, specific articles of these charters are often not indicated, which led to significant inconveniences in using the “Charter on punishments imposed by justices of the peace”. Some articles are poorly developed and do not take into account cases that are often encountered in practice.
