Criminal Misconduct and Its Role in Interdisciplinary Differentiation

of Responsibility

Evgenia Victorovna Rogova

and Roman Alekseevich Zabavko

Department of Criminal and Legal Discipline, Irkutsk Law Institute (branch), The University of the Prosecution of the

Russian Federation, Shevtsova Street, 1, Irkutsk, Russia

Department of Criminal Law, Law Institute, Irkutsk State University, Ulan-Batorskaya Street, 10, Irkutsk, Russia

Keywords: Criminal law, crime, criminal misconduct, differentiation of responsibility, public danger.

Abstract: The article raises the problem of the content of the category of «criminal misconduct», the idea of which has

recently been discussed more and more often at the doctrinal and legislative levels. The study has been

conducted with the use of dialectical methods of analysis and synthesis, and also comparative-legal, historic

research, method of legal modeling. The objective was to establish logical and formal content of this category,

to define positive and negative effects from its inclusion into the text of the Criminal Code of the Russian

Federation in the variant it was proposed by the Supreme Court of the Russian Federation. The main tasks of

the study are the analysis of the approaches to understanding of category «criminal misconduct», concept of

its legislative realization, finding drawbacks of legal constructions, proposed by the Supreme Court of the

Russian Federation, prediction of social and political effects of suggested reform. It is noted that the proposed

content of criminal misconduct makes it actually grounds for exemption from criminal liability with other

criminal measures. It is argued that the best option to implement the idea of criminal misconduct is to enshrine

it as an independent criminal category, which would include crimes that are classified as the least dangerous

in the current Criminal Code, as well as the most dangerous administrative offences, which have «border»

compositions in the criminal law.

1 INTRODUCTION

Discussion of the legislative consolidation of criminal

misconduct in recent years has once again become an

urgent agenda of the doctrine of criminal law. This is

primarily due to the implementation of the course to

humanize the criminal policy of the state, changing

the legal assessment of acts that constitute a crime of

small and medium severity. The Supreme Court of the

Russian Federation has twice taken a legislative

initiative to introduce into criminal law the category

of «criminal misdemeanor», which, if implemented,

will significantly change the understanding of the

essence of the crime, the basis of criminal

responsibility, exemption from it. At the same time,

thoughtless actions in this part could have far going

consequences and are able to create additional

problems in realization of criminal liability, destroy

theoretical and legal basis of criminal law and to some

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extent even reduce effectiveness of criminal and legal

security.

Analysis of the latest legislative initiative of the

Supreme Court of the Russian Federation, related to

the introduction of criminal misconduct in the text of

the criminal law, shows that the modern legislator

perceives it as a tool to absolve from criminal

responsibility persons who first committed a number

of crimes of small or moderate severity. At the same

time, this way of understanding of criminal

misconduct does not match with its historical basis

and understanding its content by many scientists.

In the science of criminal law among proponents

of the approach to return to the Criminal Code of the

Russian Federation the category of «criminal

misconduct» prevails the position that it should not

have the character of a tool of exemption from

criminal responsibility, but to establish a list of the

least dangerous acts for which the responsibility

118

Rogova, E. and Zabavko, R.

Criminal Misconduct and its Role in Interdisciplinary Differentiation of Responsibility.

DOI: 10.5220/0010630100003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

118-122

ISBN: 978-989-758-532-6; ISSN: 2184-9854

should be settled by criminal law, but which should

not be recognized as crimes. As proponents of this

approach, we believe that the category of criminal

misconduct should include not only certain least

dangerous acts, but also some administrative

misconduct, as well as individual civil torts.

However, a clear understanding of the criteria for

these acts should be included in this category. In

addition, their precise understanding is necessary for

the implementation of interdisciplinary

differentiation of responsibility.

2 MATERIALS AND METHODS

General scientific methods of theoretical and legal

research were used to solve the problems. In addition,

methods such as analysis, synthesis, historical and

legal, genetic, comparative-legal, method of legal

modeling were used.

3 RESULTS AND DISCUSSION

In the science of criminal law, the prevailing

approach is that criminal misconduct should be an

intermediate position between crimes and

administrative misconduct. According to some

scholars, the de facto this has already happened: this

conclusion stems from the provisions of p.2 Article

15 of the Criminal Code of the Russian Federation,

where the category of crimes of minor gravity is

enshrined, as well as from the provisions of p. 3,

Article 150 of the Criminal Code of the Russian

Federation and Article 31 of the Criminal Code of the

Russian Federation, which respectively determine the

investigation of crimes of minor gravity and the

jurisdiction of criminal cases of crimes, the

punishment for which does not exceed three years

imprisonment (Tsepelev, 2004). This is due to the

fact that the measures of criminal and legal influence

for the commission of such crimes are minimal, cases

are investigated and treated in a simplified manner,

the punishment in the form of real imprisonment is

practically not appointed. To some extent the

boundaries of responsibility for some crimes dissolve

and, in particular, for criminals the significance of

criminal liability disappears, which in fact can be less

strict than, for example, civil law. For example, the

civil costs of hooligans on civilian air transport are

measured by multimillion-dollar claims, while

criminal penalties are usually limited to mandatory,

remedial or conditional imprisonment (Chuchaev

A.I., Gracheva Y.V., Malikov S.V. 2020). A similar

situation is observed in the area of responsibility for

intellectual rights violations (Turkin M.M., Savtsova

N.A., Neznamova A.A., Shilovskaya A.L. 2019.).

In view of the foregoing, there is already a

problem of establishing clear criteria by which

interdisciplinary differentiation of responsibility

under the following system could be made:

minor violations involving property liability (civil

law);

the most serious offences with a small (from the

position of criminal law) public danger

(administrative law);

a minor or medium-sized crime (criminal law).

In addition, responsibility for these acts is also

differentiated within own branch of law. The problem

is exacerbated by the fact that many of the acts

provided for by different branches of law are

borderline, distinguishing by few insignificant

characteristics. Thus, at present, the Criminal Code of

the Russian Federation and the Code of

Administrative Violations of the Russian Federation

contain more than a hundred compositions, which

almost completely coincide on objective and

subjective grounds and have the same nature of public

danger. At the same time, only one of the signs

indicates a higher degree (the size of the crime, the

means used, the tools, the way it is committed, the

size or type of public-hazardous consequences, the

signs of the subject of the crime, etc.). These signs, in

general, are formal. In particular, drug crimes and

related administrative law violations only differ in

size of the crime, and in some cases, when it is

impossible to define this trait accurately (if, for

example, the subject of the crime is a mixture of

drugs, psychotropic substances or their analogues),

the law enforcement officer is forced to establish

special rules for their accounting (in fact, special rules

for the separation of administrative and criminal

liability).

In some cases, Plenum of the Supreme Court of

the Russian Federation considerably widens the

content of signs of certain composition of crime with

the purpose of establishing these rules. Thus,

although, paragraphs «a-g» p.1 Article 256 of the

Criminal Code of the Russian Federation are listed as

alternative, the absence of major damage (par. «a»)

even with the use of self-propelled floating vehicle

or explosives and chemicals, electric current or other

prohibited weapons and methods of mass destruction

of water biological resources (par. «b») or in

spawning grounds or on migratory routes to them

(par. «c»), illegal extraction of water biological

resources is considered insignificant.

Criminal Misconduct and its Role in Interdisciplinary Differentiation of Responsibility

119

The situation is exacerbated by the high mobility

of some legislative structures. In particular, in the last

few years the composition of hooliganism has

changed several times (Article 213 of the Criminal

Code of the Russian Federation): initially its

transformation was associated with a significant

humanization of criminal responsibility in this area,

while the latest novels are aimed at its significant

tightening.

In some cases, the legislator is manifestly

inconsistent and transforms the rules in a way that

violates the rules of differentiation of criminal

responsibility. Thus, administrative responsibility for

unskilled theft, fraud, embezzlement and defalcation

is established in cases where the value of the stolen

does not exceed 2500 rubles. At the same time, the

Federal Law of 23.04.2018 No. 111-FL made

amendments in Part 1 of Article 1593 of the Criminal

Code of the Russian Federation, as well as introduced

a new composition of theft (par. «g» p. 3 art. 158 of

the Criminal Code of the Russian Federation),

namely, a new qualifying feature was introduced - the

commission of theft from the bank account, as well as

electronic money. Given that this is qualified

composition of theft, the amount of stolen does not

influence separation of criminal and administrative

liability in this case. Meanwhile, fraud committed in

almost similar circumstances (e.g., payment in a store

by a found bank card for goods worth less than 2500

rubles) does not constitute criminal liability (qualifies

under Part 1 or 2 of Article 7.27 of the Russian

Federation's Code of Administrative Violations),

while clearly actually less dangerous theft with the

use of this card (for example, withdrawal of money

from the ATM) is a crime under par. «g» part 3 of

Article 158 of the Criminal Code of the Russian

Federation. Similar problems are common in the

sphere of environmental crimes, when more

dangerous acts are administratively punishable, while

for less dangerous, criminal liability is possible

(Pozdnyakova, E., Borenstein, A. 2019.).

Another problem is related to the introduction of

administrative prejudgement in the Criminal Code of

the Russian Federation, when the re-commission of

an administrative offence entails criminal

responsibility. This approach «erodes» the criteria of

public danger of certain acts, which can

simultaneously be administratively punishable and

criminal, and the establishment of criminal liability in

such cases is actually conditioned by the presence of

a special feature of the subject - the fact of his

bringing to administrative responsibility. At the same

time, this trait is time-limited. Methodologically it is

not quite clear how this circumstance changes the

essence of the act itself. In addition, «reverse»

process seems doubtful as the expiration of a certain

time again makes the act «non-dangerous».

Recognizing, in general, the high preventive

potential of administrative prejudgement, scientists

have repeatedly written that it has no theoretical

justification, introduces problems in the content of

other institutions of criminal law (e.g., the institution

of circumstances that exclude crime, criminal

responsibility, complicity, etc.), destroys the system

of «double» prevention, and has evolved from a tool

of humanization into a means of increasing repression

(the legislator increasingly introduces in the Criminal

Code of the Russian Federation compositions with

administrative law violations).

The above-mentioned problems of

interdisciplinary differentiation of responsibility

could be solved by introducing a criminal offence in

the Criminal Code of the Russian Federation, which

would include those acts that have a high enough

public danger, which does not allow to «leave» them

in the sphere of administrative or civil law, but

insufficient, in order to fully implement those

repressive measures that are provided for the

commission of crimes.

At the same time, the concept of criminal

misconduct, supported by us, has opponents in the

scientific environment. Thus, A.M. Smirnov believes

that «the inclusion of criminal misconduct in the

Criminal Code of the Russian Federation will create

a certain threat to the very nature of public danger, as

a sign that separates the crime from other offenses, as

well as will negatively affect the effectiveness of the

mechanism of criminalization of illegal acts»

(Smirnov, 2019). We suggest that the problem is not

related to the initial «unsuitability» of the idea of

criminal misconduct, but to the concept of the ratio of

administrative and criminal law, which is

implemented in Russian law. The Legislator itself

«eroded» the criteria of social danger, making

competitive administrative violations and crimes, not

thinking about clear criteria for their separation

according to their social danger. The measure that we

suggest allows to overcome this problem. It requires

following certain conditions of legislative

establishment for criminal misconduct.

First, the concept, signs and list of criminal

misconduct should be enshrined solely in criminal

law. Among them should be included crimes

fromthose enshrined in the special part of the current

Criminal Code of the Russian Federation, the public

danger of which is minimal. This requires a separate

criminal and criminological study, which would

define the range of such crimes from the point of view

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of the law enforcement practice. It is necessary to

define the noted list the way that completely excludes

having similar compositions of crimes and

administrative law violations, distinguished only by

degree of their public danger. This model of criminal

misconduct does not contradict suggestions of

scientists about improvement of the text of the

criminal law and could complete basic concepts.

(Lopashenko, Kobzeva, Hutov, Dolotov, 2017).

Secondly, criminal misconduct should be defined

as a type of criminal offence, not as, for example, its

category, grounds for exemption from criminal

responsibility or punishment, other criminal-legal

measures or other criminal categories. At the same

time, the basis of responsibility for criminal

misconduct should be the same as for the crime - the

presence of all signs of the composition of a particular

criminal offense. Other institutions of criminal law -

complicity, circumstances, excluding criminality of

action etc., can be applied to them. In this regard, we

cannot support the position of the Supreme Court of

the Russian Federation, which it outlined in the draft

Federal Law No. 1112019-7 (ed., introduced in the

Russian Federation State Duma of Federal Assembly,

the text as of 15.02.2021) «On amending the Criminal

Code of the Russian Federation and the Criminal

Procedure Code of the Russian Federation in

connection with the introduction of criminal

misconduct» where criminal misconduct is defined as

a crime of minor gravity committed by a person for

the first time (from a special list), for which the

Criminal Code of the Russian Federation does not

provide for a penalty of imprisonment, for which the

perpetrators can be exempt from criminal

responsibility with the use of special measures of a

criminal-legal nature. Nor can we agree with those

authors who propose to define criminal misconduct as

an act not related to criminal responsibility and

generally rendered outside of criminal law (for

example, in a special Code of criminal misconduct or

in the Code of Administrative Violations of the

Russian Federation).

Thirdly, they should not be punishable by

imprisonment, significant property or other

restrictions, and criminal records. It may be necessary

to introduce new self-imposed punishments in order

to realize responsibility for criminal misconduct. This

will allow fully to take into account socially

diversified aspect of criminal punishments. (Lapshin,

Korneev, 2019; Karabanova, 2019).

Determining the criteria for classifying

wrongdoing as a criminal offence should pay

attention to the nature of the public danger of the act.

We believe that the object of encroachment in this

case cannot be public relations related to the

protection of human life, peace and security of

mankind. Speaking of the degree of public danger of

alleged criminal misconduct, it should be noted that it

cannot be high. In particular, when it comes to the

consequences of such crimes, they should not be

associated with causing serious, particularly serious

harm to health, death, causing significant property

damage or significant harm to citizens, society and

state, not to consider special repeating in the

composition. (Dyadyun, 2015). Criminal misconduct

cannot be committed in a generally dangerous way,

with the use of weapons, explosive devices,

explosives, explosives or other dangerous weapons.

Meanwhile, influence of given above

circumstances and also other factors, for example,

purpose, motive and so on on the possibility of

referring concrete actions as criminal misconduct,

must be studied separately.

4 CONCLUSIONS

Thus, criminal misconduct is an important tool for

humanizing criminal law, but incorrect approaches to

its implementation can create additional difficulties

for the law enforcement, violate the established

positions of criminal law. Criminal misconduct

should be a category in which the least dangerous

crimes should be concentrated, as well as the most

dangerous administrative offences. At the same time,

not all crimes of small or moderate severity should be

classified as criminal offences (as stipulated in the bill

of the Supreme Court of the Russian Federation), but

only those that do not have a high degree of public

danger. The purpose of the category should be not to

absolve the perpetrators of criminal responsibility,

but to apply to them a measure of criminal force that

is not related to imprisonment and does not constitute

a criminal record.

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