Evaluative features in the definition of crimes in the legislation of the Russian Federation: problems of defining the concept

Musienko Natalia Sergeevna Graduate student; Department of Criminal Law and Criminology; Kuban State University 350000, Russia, Krasnodar region, Krasnodar, Stavropol str., 149 pilila@rambler.ru

The criminal law acts as a guarantor of the protection of human rights and freedoms. It contains an exhaustive list of criminal acts, the formal content of which are signs of a crime. The effectiveness of the implementation of a criminal law directly depends on the content of criminal law norms and the uniformity of their application practice. The nature and content of individual signs of the elements of crimes are not ambiguous and clearly defined, which complicates the process of law enforcement officers operating on them. A significant group of such circumstances is formed by the so-called evaluative features or categories. The text of laws in the history of criminal law in Russia, both medieval, Modern, Soviet, and modern, has always contained and contains references to the evaluative features of the corpus delicti. As it is rightly noted in the specialized literature, these signs are both a virtue and a problem of criminal law. On the one hand, they allow for a more complete consideration of the legally significant circumstances of the case, and on the other, they carry the risk of misinterpretation ^{[1, p. 124]}. Research on this issue is not uncommon in criminal law doctrine, as evidenced by a significant number of scientific papers. In particular, the works of R.U. are devoted to the study of the evaluative features of the corpus delicti in a complex or separately in modern realities (that is, taking into account the legislation of the Russian Federation). Akhmedov ^[3], D.R. Kasimov ^[11], E.V. Kobzeva ^[14], E.N. Maslova ^[16], B.P. Morozova ^[17], S.N. Naumova ^[19] and a number of other authors. At the same time, it is necessary to pay attention that the study of such signs began relatively recently – from the middle of the XX century, as evidenced by one of the first works on this issue by S.I. Vilnyansky ^[6]. It is necessary to agree with the position of D.R. Kasimov, who points out that the presence of diverse and completely opposite scientific positions regarding the understanding of these signs determines the need for additional understanding ^{[11, p. 11]} of both their content and understanding. In addition, it is also necessary to pay attention to the lack of a legal approach to the designation of evaluative signs, the rapid development and modernization of the teachings on the composition of the crime, which necessitates the development of a new and more objective approach to their definition.

To establish the concept of evaluative features of the corpus delicti, two approaches will be used within the framework of the ongoing research, the first of which involves reviewing the doctrinally developed definitions of this term, and the second is to identify its semantic meaning.

First of all, let's turn to some existing definitions of evaluation features, presented below in the table for convenience of their consideration.

Table 1. Some definitions of evaluative features of the corpus delicti in criminal law

From the presented definitions, it seems possible to identify the general properties of the term under study. Most authors agree that evaluative features are a criminal law concept; they are used in the text of the law; they are established by a certain subject.

In addition to this, it is necessary to pay attention that in the science of criminal law, the following features are given to evaluative features:

– not explained in detail by the legislator ^{[12, p. 8]};

– not specified by the legislator, they are established independently ^{[5, p. 63]};

– are determined by the legal consciousness of a lawyer ^{[15, p. 134]};

– are determined not by a law or other normative legal act, but by the legal consciousness of a person, based on the specific circumstances of the case ^{[18, p. 97]};

– they have not received either legislative or judicial interpretation ^{[10, p. 18]};

– they have an inaccurate volume, their list is open ^{[13, p. 8]}.

It is also worth noting that the term "evaluative feature" in some part correlates with other legal phenomena found both in criminal law science and in other related fields (in particular, in the theory of law). This is also emphasized in the specialized literature. For example, D.I. Golushkov points out that the concept of evaluation categories was introduced into Russian science in the middle of the last century. At the same time, there is currently no scientific consensus on the definition itself, on the composition of evaluation categories, and even on the name of this phenomenon (in the literature, "evaluation concepts", "evaluation features", "evaluation terms", "situational concepts", etc. are used as synonyms. ^{[4, pp. 61-62]}) ^{[7, p. 188]}. The table below shows some definitions of related (similar) terms in relation to the term evaluative features of the corpus delicti.

Table 2. Some definitions of related (similar) terms in relation to the term evaluative features of the corpus delicti

Accumulating various ideas about the word "evaluative" from a legal point of view, it can be noted that they are designated as a term that covers many significant properties and conditions of a certain object to be evaluated.

For the purpose of a more expanded understanding of the evaluative signs of crimes, let us turn to their semantic properties. In this context, we note that the term "evaluative" is central to this phrase. The word "sign" is reproduced as an indicator of an object, a sign by which you can learn, identify something. In general, criminal law science has developed a common understanding that the sign of the corpus delicti is a specific legally significant property, trait, feature of a socially dangerous encroachment, which are part of one of the elements of the crime model.

The word "evaluative" correlates in meaning with the noun "assessment" ^[23]. Thus, "evaluative" is an adjective meaning an attitude to the evaluation process, expressing a judgment about the quality, meaning, quantity or importance of something. Thus, an evaluation feature is a certain indicator of something, the significance of which can be determined only by judging its quality, quantity and other parameters.

In philosophy, evaluation is presented as a way to establish the significance of something for an acting and cognizing subject ^{[20, p. 60]}. With this in mind, the named process is directly interrelated with cognitive and mental activity.

Analyzing various doctrinal views regarding the understanding of the evaluative features of the corpus delicti, it is difficult to agree with the position of those authors who designate them as a norm due to the fact that the norm may consist of a hypothesis, disposition and sanction. However, there cannot be any evaluation categories in the sanctions.

The designation of the studied features by concepts does not seem to be entirely correct and complete. The term "concept" reflects a certain set of general and essential features of the subject ^{[21, p. 89]}, which is characteristic of any term, including in the field of criminal law. As part of the construction of the corpus delicti, evaluative signs act precisely as its signs. They, along with others, are the conditions for the formation of a crime model. This statement is predetermined by the fact that, from the point of view of philosophy, "condition" is a category denoting the relation of an object to the surrounding reality, phenomena of objective reality. It is the condition that demonstrates the diversity of the display of the object in the picture of the world. In this regard, we believe that the term under study should be presented as conditions. In addition, it seems that such conditions should be classified as special, since by their legal nature, evaluative signs differ from other signs of the corpus delicti precisely by their specificity – the uncertainty of the content.

Summing up the results of a fragmentary study, while accumulating various doctrinal views on understanding the evaluative features of the corpus delicti, coupled with the semantic meaning of the term, one can present the author's definition of the term sought. It is proposed to understand by it the special conditions provided for in the dispositions of the norms of the Special part of the criminal law, acting at the same time as a characteristic of a certain sign or signs of the corpus delicti, criminal law content (content) which are established by the subject implementing the criminal law norm, or by a person with legal knowledge, taking into account the specific circumstances of the case.

In the presented definition, it is required to detail the circle of persons who establish the evaluation criteria. The subjects implementing the criminal law norm include both law enforcement officers and other participants in the criminal process (in particular, a defense lawyer). In this regard, it is more correct to talk about the implementation of the norm, which includes its observance, execution, use and application. At the same time, a legally significant definition of the evaluative feature of the corpus delicti in the qualification of criminal encroachment belongs exclusively to the competence of law enforcement officers. Persons with legal knowledge include specialists, representatives of the criminal law doctrine.

From the proposed definition of the term, its features can be distinguished:

– evaluative signs of the corpus delicti are special conditions involved in the formation of its model;

– evaluative signs are located in the dispositions of the norms of the Special part of the Criminal Code of the Russian Federation;

– the criminal legal content of these signs is established exclusively at the stage of qualification of a crime by a subject implementing a criminal law norm, or by a person with legal knowledge; at the same time, a legally significant definition of an evaluative feature of the corpus delicti in the qualification of criminal encroachment belongs only to the competence of law enforcement officers;

– evaluation criteria should be considered (analyzed) solely taking into account the specific circumstances of the case.