Crime self-determination phenomenon Текст научной статьи по специальности «Право»

JURISPRUDENCE

CRIME SELF-DETERMINATION PHENOMENON

Bochkareva E.

postgraduate student of the Department of Criminology and penal law Moscow State Law University of O.E. Kutafin (MSAL)

Abstract

Purpose. To examine the phenomenon of crime self-determination in order to identify its features. Findings. On the basis of the research, the author proposes the following definition: crime self-determination is the process of generation of new antisocial acts by criminality. The author also proposes a new classification of the forms of crime self-determination: by the mechanism of impact - direct self-determination (commission of auxiliary crimes, the organized groups, recidivism, corruption, professional crime, penitentiary crime) and indirect self-determination (latent crime, unsolved crime, shadow justice, a special psychology of society, and criminal anti-culture), by the level of action - self-determination of certain types of crime (mercenary, violent and other types of crime) and self-determination of individual crimes (murder, receiving and giving a bribe, the organization of an extremist organization, and others). Scientific and practical significance. The conducted scientific research allows to study the phenomenon of crime self-determination in more detail in order to minimize the spread of this phenomenon in society.

Keywords: criminology, crime, crime self-determination, crime self-reproduction, causes of crime, crime prevention.

Professors A.I. Dolgova [5, p. 8], V.N. Kudrya-vtsev [11, p. 7], V.E. Eminov [8, p. 121], Y.M. An-tonyan [1, p. 65], D.A. Shestakov [13] among the causes of crime distinguish its predisposition to self-determination, which refers to the conditionality of crime inherent in it as a systematical structural formation of relationships and dependencies that support or strengthen its reproduction in specific conditions of time and place [15, p. 9].

There are several approaches to the definition of self-determination: general scientific, social, crimino-logical.

Within the general scientific approach, self-determination is considered as "the change of an object under the influence of its inherent contradictions, factors and conditions" [4, p. 403].

Representatives of the social approach define self-determination as the main innate tendency that leads the body to engaging in behaviors of interest, that usually have advantages for developing the ability to perform flexible interaction with the social environment [9]. At the same time, self-determination is included in the development process in such a manner that the change in the way the behavior is regulated goes from complete definability by external forces to internal autonomous self-regulation [9].

Within the criminological approach, professor A.I. Dolgova gives the most complete picture of the self-determination phenomenon: "Crime is a certain system of interrelated elements, whereas the ability of the system to reproduce and self-preserve is a feature of the system, which consists in recreating the structures and connections between them; constant process of maintaining the balance of the system with the environment. This is a basic property of the system, without which it would cease to exist [5, p. 8].

All the above definitions consider self-determination through a systematic approach, involving a change

in the internal characteristics of the system through its development. In this case, the system is not something separate, it actively interacts with the external environment, which also affects the change in its internal qualities. At the same time, the reverse process occurs -when the system influences the external environment by transforming it.

Considering crime as a system capable of self-reproduction (self-determination), the following features can be distinguished:

1) crime in general is changed through changing its internal characteristics, for example, in the case of the professionalization of perpetrators;

2) crime changes due to changes in social institutions, for example, in the case of political instability in the country;

3) crime affects social processes, for example, in the case of impunity of corrupt officials.

As V.N. Dremin correctly points out, "crime self-determination is possible to the extent that there is a certain activity in society (in this case, a criminal one), which is closely connected with other types of activity. Self-determination of criminal forms of behavior is carried out through the interdependence of various types of activity that a particular person (actor) performs. One activity creates another activity" [7, p. 531]. In the criminological sense, the reproduction of crime appears as a social process, consisting in constantly continuing cycles of activity results exchange.

The existence of self-determination phenomenon is caused by the fact that crime is a non-isolated social system and affects various kinds of social relations including by means of implementation.

Meanwhile, crime self-determination can be understood in a narrow and broad sense. In a narrow sense, crime self-determination is understood as the process of generation of new socially dangerous acts by criminality, prohibited by criminal law. In a broad

sense it is the process of generation of new antisocial acts by criminality.

V.E. Eminov identifies the following forms of self-determination of crime [8, p. 121-124]:

1) self-determination in the commission of "successful" (unidentified, latent) and unsolved crime. In this group of factors, the authors include professional crime as well as recidivism.

However, in our opinion, recidivism is a separate form of crime self-determination;

2) self-determination associated with the commission of "auxiliary", "subsidiary" crimes. Conventionally, the authors distinguish between two types of such unlawful acts: "preliminary" (those followed by "main" crimes) and "post-criminal" (those committed after the "main" crime). Among the examples of the first type are illegal acquisition of weapons to commit murder, kidnapping for the removal of organs and tissues, etc. Examples of the second type can be the concealment of traces of the main crime (killing the victim after rape, for instance);

3) self-determination related to the activities of organized crime. The connection of organized crime with mercenary, violent crimes, as well as its relationship with corruption and other types of crime should be highlighted in this case;

4) self-determination related to the non-normative psychology of the population. The high level of crime and the lack of proper opposition from law enforcement agencies leads to the emergence of a special mass psychological state characterized by the perception of the permissibility of criminal acts.

In addition to the mentioned forms of crime self-determination, professor A.I. Dolgova and associate professor M.V. Koroleva distinguish another form -"shadow justice", implying independent resolution of disputes that have arisen in society, including the use of a criminal resource [6, p. 6; 10, p. 71-78].

In this case, associate professor M.V. Koroleva divides the forms of self-determination of crime into two groups:

1) forms that have an immediate (direct) self-deterministic effect on crime (latent crime, unsolved crime, the commission of auxiliary crimes, organized crime, corruption, etc.);

2) forms that have a mediated (indirect) self-determining influence on crime ("shadow justice", criminal subculture and a special psychology of the population, causing "non-normative behaviour") [10, p. 71-78].

However, in our opinion, it is necessary to attribute latent and unsolved crime to forms that have a mediated (indirect) effect, due to the fact that these types of crime determine new crimes, affecting the psychology of both the criminal and society, forming permissiveness in them.

V.V. Makarov, in turn, dividing the forms of self-determination of crime into internal sources of reproduction of crime and a favorable external environment, identifies the following types [12, p. 45-46]:

1) impunity as an internal source of reproduction of crime. This source is about a pattern in which one successful and unsolved crime, as a rule, leads to the

commission of a repeated crime. The author also includes latent crime and recidivism here;

2) the commission of related crimes as an internal source for the reproduction of crime. The commission of a related crime ensures the commission of the main one. According to the author, the commission of a related crime is either due to the commission of the main crime or depends on a set of circumstances related to it;

3) criminal subculture as an internal source of reproduction of crime. This source is associated with the negative influence of the criminal subculture, due to which criminality gets a "justification" and forms its own rules of behavior;

4) external favorable environment conducive to the crime self-determination. The author attributes here a number of factors, one of which is the psychology of the population (if the crime rate is high and most crimes are unpunished, then a state of permissiveness arises in society).

Analyzing the classifications of forms of crime self-determination, a different systematization of the considered forms seems more correct.

In this case, self-determination of crime can be divided:

1. by the mechanism of impact:

1.1. direct self-determination:

1.1.1. commission of auxiliary crimes:

1) auxiliary crimes are necessary for the commission of the main one. Such auxiliary crimes facilitate the commission of the main crime, while at the same time being a criminal offense. For example, the acquisition or manufacture of weapons for murder; forging documents for a loan, etc.;

2) auxiliary crimes committed in order to conceal traces of the main crime. For example, an individual entrepreneur in order to conceal his illegal income declares bankruptcy, which is further recognized as fictitious; an accountant falsifies documentation in order to hide the theft of funds, etc. Here, the perpetrator commits an auxiliary crime, concealing the traces of the committed (main) crime, in order to avoid punishment. It should be noted that the concealment of traces is typical for the overwhelming number of crimes, but it will not always constitute a corpus delicti;

3) auxiliary crimes committed in order to use the results of a crime. For instance, the legalization of criminally acquired income. According to expert estimates, the bulk of income received as a result of illegal activities is legalized by means of their uncontrolled entry into commercial circulation;

1.1.2. organized crime.

Self-determination is expressed not only by the influence of organized crime on the economic sphere, but also by the presence of the reverse process. One can observe the process of vertical disintegration of organized criminal groups: "As the leaders of economically successful organized criminal groups established relations with the legitimate authorities and integrated into the legal business, members of the middle and lower level groups became unnecessary. Many of them have now joined the ranks of ordinary, unorganized crime." Even if the business structure with a criminal past completely refuses to commit crimes, the very fact of its entry into

the "legal" economic life can in one way or another adversely affect society, facilitate anomie and be one of the independent factors of self-determination of crime;

1.1.3. corruption.

Another form of crime self-determination - corruption - is closely related to organized crime [3, p. 7782]. Organized criminal formations are the main corrupted characters; they act as the customer for the actions of the bribed party. At the same time, reverse relation also exists, when corrupt officials contribute to the preservation and development of criminal structures, helping them, for example, to evade taxes and criminal liability, illegally acquire property, etc.;

1.1.4. recidivism.

Recidivism of crimes differs from simple repetition in that a new crime is committed after the measures for previous crimes have been taken. Recidivism expresses such a negative quality of crime as its resilience, and its increased public danger in the fact that it indicates the persistent unwillingness of a number of individuals to behave in accordance with the norms accepted in society and the choice of criminal methods to solve their problems by such individuals;

1.1.5. professional crime.

The professionalism of criminals is observed when a criminal commits socially dangerous acts of a certain type, for instance, fraudulent acts, several times. And each time he improves the criminal schemes used, and also works out new ones, based on his personal criminal experience and the experience of other criminals serving their sentences with him. At the same time, it is impossible not to notice that professional crime has an increased latency;

1.1.6. penitentiary crime.

The mechanism of self-determination of penitentiary crime is expressed in:

1) special criminal anticulture and forced submission to the interests of criminal leaders;

2) conflict situations and contradictions between groups of convicts and individual convicts or between convicts and representatives of the prison administration;

3) development of a special psychology of a convicted person who is constantly awaiting humiliation and is ready for self-defense, in connection with which he has to join this or that group of convicted people for the sake of his own safety and support their interests;

1.2. indirect self-determination:

1.2.1. latent crime.

Considering the issue of the latency of crime, it is necessary to distinguish two of its types: concealed and covered up. Concealed latency of crime is caused by a number of factors: the victim did not appeal to law enforcement agencies for the protection of his interests because he was unaware that a crime had been committed against him (for instance, a fraud was committed against a citizen, but he does not perceive it as a criminal act, considering the incident insignificant) and further actions, because of the unwillingness to seem insolvent (for instance, in the case of rape, the victim does not inform the law enforcement authorities of the incident, not to spoil her own "reputation"), because of the inefficiency of law enforcement agencies, restoration

of social justice without help (for instance, lynching); law enforcement agencies are not aware of the crime for other reasons (for instance, in the case of killing a person with no fixed abode and hiding the corpse in a forest). Covered up crime can also be caused by a number of factors: neglect of crimes in order to improve the solve rates, the refusal to accept the statement with reference to the insignificance of the act (however, the decision on insignificance is subjective), due to the workload of law enforcement agencies;

1.2.2. unsolved crime.

Unsolved crimes due to the fact of their registration and recording by law enforcement agencies are not part of latent crime, but they play the same role in the development of self-determination of crime, since in case of the absence of a response from law enforcement agencies the offender does not bear punishment, which leads him to conclude that it is possible to continue criminal activities;

1.2.3. shadow justice.

"Shadow justice" is the resolution of disputes arising between citizens, as well as their protection of their interests on their own, including with the use of a criminal resource in a situation of lack of confidence in the state's law enforcement system. In the case of revenge of the victim, the accomplishments of "lynching" dispute settlement occurs outside the framework of the official state system;

1.2.4. criminal anticulture.

Criminal anticulture influences not only those serving sentences in prison, but also the psychology of society as a whole. In the fair opinion of O.V. Starkov, the social danger of criminal anticulture is that it:

1) distorts the public sense of justice, distorts the integrity of citizens;

2) preserves and passes criminal experience and professionalism from generation to generation of criminals;

3) contributes to the negative transformation of moral, cultural, ideological, aesthetic values of modern society;

4) complicates, and in some cases even blocks, the process of socialization of adolescents and young people, instilling pseudo-cultural attitudes and asocial norms in them;

5) creates a positive image of certain categories of criminals and condemns the assistance of the population to law enforcement agencies in any form;

6) forms public opinion about the lack of trust in the state, provokes citizens to violate legal norms and prohibitions, also pushes them to commit administrative offenses and criminal offenses;

7) cultivates legal nihilism, frivolous or careless attitude to labor and civil duties, dismissive or indifferent attitude to historical and cultural monuments in the society [14, p. 22];

1.2.5. a certain psychology of the population.

Legal anomia (a certain state of the psychology of

society) arises precisely in connection with the dissonance of unwritten and formal law. The development of formal law contrary to the norms established in society generates and reinforces anomic behavior. The means to achieve the goal set by the individual may come into

conflict when the individual begins to strive for some result, but he understands that he does not have access to the approved means of social structure. In this case, he resorts to illegal ways to achieve his goal [2];

2. by level of action:

2.1. self-determination of certain types of crime (mercenary, violent and other types of crime);

2.2. self-determination of individual crimes (murder, receiving and giving a bribe, the organization of an extremist organization, and others).

Thus, crime self-determination is the process of generation of new socially dangerous acts by criminality. Forms of crime self-determination can be divided into two main groups: having a direct self-determining effect and having an indirect self-determining effect. The first group includes the commission of auxiliary crimes, an organized group, recidivism, corruption, professional crime, penitentiary crime. We include latent crime, unsolved crime, shadow justice, a special psychology of society and criminal anti-culture to the second group.

REFERENCES:

1. Antonyan Yu.M. Criminology: a textbook for bachelors. Moscow: Yurayt, 2012. 388 p. (In Russian).

2. Bochkareva E.V. Legal anomie and criminali-zation of modern Russian society // Bulletin of CSU. Series "Right". - 2018. (In Russian).

3. Bochkareva E.V. Organized crime as a form of crime self-determination // Spirit-time. 2018, №12, pp. 77-82. (In Russian).

4. Brief philosophical encyclopedia. Moscow: Progress, 1994. 575 p. (In Russian).

5. Dolgova A.I. Criminological assessments of organized crime and corruption, legal battles and national security. Moscow: Russian Criminological Association, 2011. 665 p. (In Russian).

6. Dolgova A.I., Vanyushkin S.V., Evlanova O.A., Ilyin O.S., Koroleva M.V., Serebryakova V.A., Yutskova E.M. Crime in Russia: statistics and realities // Crime, statistics, law. Moscow: Criminological Association. 1997, pp. 4-10. (In Russian).

7. Dremin V.N. Theoretical foundations of the concept of criminal activity in criminology // Actual problems and powers and rights. 2012, Vol. 65, pp. 527-539. (In Russian).

8. Eminov V.E. The causes of crime in Russia: criminological and socio-psychological analysis: Monograph. Moscow: Norma, 2011. 128 p. (In Russian).

9. Gordeeva, T.O. Self-determination theory: present and future. Part 1: Problems of the development of the theory // Psychological studies: electron scientific journals. 2010, №4 (12). URL: http://psys-tudy.ru/num/2010n4-12/343-gordeeva12 (In Russian).

10. Koroleva M.V. Corruption: the state of counteraction and the direction of optimization of the struggle // The state of counteracting corruption and the direction of improving the fight against it: Materials of the All-Russian scientific-practical conference. Moscow, 2015. Pp. 71-78. (In Russian).

11. Kudryavtsev V.N. Causality and determinism in criminology. Vladivostok, 1983. Pp. 4-10. (In Russian).

12. Makarov V.V. Self-determination of crime: a monograph. Moscow: Yurlitinform, 2015. 144 p. (In Russian).

13. Shestakov D.A. Criminology: new approaches to crime and crime. Saint Petersburg: Legal Center PRESS, 2006. 561 p. (In Russian).

14. Starkov O.V. Criminal subculture: special course. Moscow: Volters Kluver, 2010. 240 p. (In Russian).

PROTECTION OF VALUABLE SPECIES IN THE RUSSIAN FEDERATION BY THE CRIMINAL

LAW SHOULD BE IMPROVED

Zhevlakov E.

Doctor of law, Professor, Honored lawyer of the Russian Federation, Honorary worker of the Prosecutor's office of the Russian Federation,

Professor of Criminal Law Department of the Kutafin Moscow State Law University (MSAL)

УГОЛОВНО-ПРАВОВАЯ ОХРАНА ОСОБО ЦЕННЫХ ВИДОВ ЖИВОТНЫХ В РОССИЙСКОЙ ФЕДЕРАЦИИ НУЖДАЕТСЯ В СОВЕРШЕНСТВОВАНИИ

Жевлаков Э.Н.

доктор юридических наук, профессор, Заслуженный юрист Российской Федерации, почетный работник прокуратуры российской Федерации, профессор кафедры уголовного права Московского государственного юридического университета имени О. Е. Кутафина (МГЮА)

Abstract

The article refers to the measures taken by the state to protect particularly valuable species of animals, shows the reasons for the low efficiency of their criminal law protection. The article analyzes the environmental and legal content of the concepts of "animals", "especially valuable animals", "wild animals", etc. and the transformation of