?
Разграничение ролей исполнителя и пособника: закон и правоприменение
The paper is devoted to the question of crime committer and assisting offender activities distinction in the interpretation of the current criminal legislation and judicial practice, accumulated over the last twenty years.
There is a verification of the Special Part of the Criminal Code articles compliance with the general provisions of complicity. The empiric basis consists of crimes against human life and health, sexual inviolability and sexual freedom of the person; against property; against public security, human health and public morality; ecological crimes and crimes related to bribery court practice.
The Supreme Court of the Russian Federation key acts, containing clarifications on the question of the crime committer and assisting offender roles distinction, are covered. There is the analyze of highest judicial body acts ambiguities, generating discussion in scientific community and the enforcement practice uniformity absence. The paper contains a precedents selection, which set out the courts position different from the Supreme Court clarification.
Particular attention is paid to the federal law adoption, adding p. 3 to the Art. 2051 of the Criminal Code, which stated abetting in terrorism as an independent crime, and to the state authorities positions, where set out their draft law review. This law led off the tendency of crime committer and assisting offender activities confusion at the legislative level. The tendency was continued by the addition of the Criminal Code Art. 2911 ‘Mediation in bribery’. There is also the analyze of the draft laws which are currently under consideration in the State Duma. In case of their adoption abetting in some crimes committing will be recognized as independent crimes and persons committed these crimes will be recognized as crime committers.
The author notes that the Supreme Court often is beyond the permissible interpretation and its position is an application of the law by analogy but not the explanation. The author supports the proposal to make the p. 5 Art. 33 of the Criminal Code activities list open to avoid difficulties with this rule application. In general, the author concludes that there is the tendency to blurring distinction between the crime committer and assisting offender roles, states the judicial practice uniformity lack and considers the development of the general provisions of complicity is the right direction.