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CRIMINAL PROCESS
ISSUES OF QUALIFICATION OF THE ACT WITH THE NORMS OF THE CRIMINAL CODE WITH ADMINISTRATIVE PREJUDICE
Farhod Kholikov
Lecturer at the Department of Criminal Law, Criminology and fight against corruption of the Tashkent State University of Law, Republic Uzbekistan, Tashkent E-mail: _ [email protected]
О ВОПРОСАХ ПРАВОМЕРНОСТИ ДЕЯНИЯ СОГЛАСНО НОРМАМ АДМИНИСТРАТИВНОЙ ПРЕЮДИЦИИ УГОЛОВНОГО КОДЕКСА
Холиков Фарход
преподаватель,
Факультет уголовного права, криминологии и борьбы с коррупцией, Ташкентский Государственный Юридический Университет, Республика Узбекистан, г. Ташкент E-mail: _ [email protected]
ABSTRACT
In the article administrative preposition by the author the specificity of legal liability only for the type of criminal liability, the fact that administrative pre-criminal content, due to its nature and social danger, belongs not only to the category of crimes that are not at great social risk, but also not very serious, the specificity of administrative pre-criminal content to acts committed only intentionally, according to the sign of the subjective side, when qualifying an act with the norms of administrative pre-criminal law, attention should be paid to the fact that the necessary sign of the objective side of the content of this type of crime should be committed after the application of administrative punishment for such an act in relation to a person, the fact that in some norms of criminal law the reflection of administrative precedence does not fully meet the principles of humanism and justice, the fact that the repeated commission of an administrative offense within a year does not increase either the quality indicator of the crime or the level of social danger, it is justified that the consequences of liability should also be terminated after the person is brought to justice for the act committed.
АННОТАЦИЯ
В статье административная преюдиция автором рассматривается специфика юридической ответственности только для вида уголовной ответственности, тот факт, что административное предкриминальное содержание, в силу своего характера и общественной опасности, относится не только к категории преступлений, не представляющих большого социального риска, но и не очень тяжких, специфика административного досудебного содержания к деяниям, совершенным только умышленно, по признаку субъективной стороны, при квалификации деяния нормами административного доуголовного права следует обратить внимание на то, что необходимый признак объективной стороны содержания данного вида преступления должен быть совершен после применения административного наказания за такое деяние в отношении лица, тот факт, что в некоторые нормы уголовного права, отражающие административную приоритетность, не в полной мере отвечают принципам гуманизма и справедливости, тот факт, что повторное совершение административного правонарушения в течение года не увеличивает ни качественный показатель преступления, ни уровень общественной опасности, оправдывает то, что последствия ответственности также должны быть прекращены после привлечения лица к ответственности за совершенное деяние.
Keywords: legal liability, criminal liability, administrative liability, administrative prejudice, degree of public danger, criminal classification, public danger.
Ключевые слова: юридическая ответственность, уголовная ответственность, административная ответственность, административная преюдиция, степень общественной опасности, уголовная классификация, общественной опасность.
Библиографическое описание: Kholikov F.U. ISSUES OF QUALIFICATION OF THE ACT WITH THE NORMS OF THE CRIMINAL CODE WITH ADMINISTRATIVE PREJUDICE // Universum: экономика и юриспруденция : электрон. научн. журн. 2023. 6(105). URL: https://7universum.com/ru/economy/archive/item/15493
The qualification of crimes is to determine the compatibility (similarity) between the signs of a clearly socially dangerous act and the signs of the criminal law norm [1] . According to the well-established rule of the criminal-legal literature, the qualification of the crime is to determine and legally strengthen the compatibility between the signs of the committed act and the signs of the crime structure provided for in the criminal-legal norm [2] . The qualification of criminal acts is an important element of sentencing for any crime. When assessing the actions of a criminal, including a person who encroached on the physical freedom of a person, the investigator, prosecutor, and court are required to resolve the issue of which criminal legal norm should be applied, that is, to correctly qualify the committed socially dangerous act. Thus, the classification of crimes in accordance with the criminal law of the Republic of Uzbekistan is the legal basis for the occurrence of criminal responsibility and its implementation.
In order to carry out justice, it is necessary to correctly qualify the relevant act in accordance with the specific content of the criminal law and the actual circumstances of the crime. When solving the issue of a person's guilt in committing this or that crime, investigative bodies, the prosecutor or the court are required to choose a criminal-legal norm that expresses all the signs of the committed act, that is, to qualify the committed socially dangerous act from a criminal-legal point of view.
In the theory of criminal law, the concept of qualification of crimes is defined differently by scientists. According to L.D. Gauxman, A.A. Hertsenzon and I.V. Andreev, the classification of crimes is the conformity of a certain act with the characteristics of one or another crime structure provided for in the criminal law [3] , M.I. Korzhansky and A.G. Levitskys explain that the classification of crimes is a criminal-legal evaluation of the committed act, the selection of the criminal-legal norm that most fully describes its signs and its application [4] .
In some cases, it is necessary to apply administrative prejudice in the implementation of criminal responsibility, in particular, in the qualification of the act. Administrative prejudice is defined as the fact that in order to declare an act a crime, an administrative punishment has been applied to the person who committed it for the same act before, and this condition is defined in the relevant article of the Special Part of the Criminal Law. In this case, it should be noted that in accordance with Article 37 of the Code of Administrative Responsibility of the Republic of Uzbekistan, a person sentenced to an administrative penalty shall be if he has not committed a new administrative offense within a year, this person is not subject to administrative punishment [5] . It is necessary to take this rule into account during the application of the rule of administrative prejudice [6] .
It is known that criminal law is related to administrative law to some extent. According to M.Usmonaliev, administrative law regulates relations arising from administrative violations, while criminal law regulates relations arising from criminal violations. In several articles of the Special part of the Criminal
Code, if a person who has been held administratively responsible for a certain act commits such an act again, the act is considered a crime and the person is held criminally liable [7] .
Administrative prejudice is also provided for in the Criminal Code of the Uzbek SSR of 1959. In particular, the acts provided for in Article 113 (Insulting) of this criminal law - insulting someone by actions, words or letters, i.e. deliberately knocking down a person's respect and dignity, if it happens repeatedly after public or administrative measures have been taken. if it was done, it caused criminal liability [8] . However, in the Criminal Code of the Soviet Socialist Republic of Uzbekistan in 1926, administrative prejudice is not found [9] .
According to the current Criminal Code of the Republic of Uzbekistan, the act is considered a crime only if it is committed after the administrative punishment has been applied to a person for committing an act punishable by 66 crimes [10] . For example, in Article 122 of the Criminal Code of the Republic of Uzbekistan (evasion of material support of minors or incapacitated persons), evasion of material support of a minor or incapacitated person in need of material support, that is, to a court decision or court order to provide them materially A person shall be held criminally liable if he commits a socially dangerous act, which is expressed in failure to pay the amount due for recovery for a total period of more than two months, after the administrative punishment for the same act has been applied.
Declaring a person's act a crime requires that the act contains the elements of a crime. The composition of the crime consists of four elements, which are as follows: the object of the crime, the objective side of the crime, the subject of the crime, the subjective side of the crime.
In the theory of criminal law, the objective side of the crime is defined as follows: the signs characterizing the external circumstances of the socially dangerous action or inaction against the object protected by the criminal law are said to be the objective side of the crime [11] .
It should be noted that, according to the theory of national criminal law, the requirement that the act be committed after the application of the administrative penalty is a necessary sign of the objective aspect of this crime.
For example, when a person commits the acts provided for in Article 109 of the Criminal Code (intentionally inflicting slight bodily injury), i.e., when an intentional slight bodily injury that did not cause a short-term deterioration of health or loss of working capacity for a short period of time, the same acts are considered a crime in order to assess the act as a crime the person who committed it is required to have committed it after the administrative penalty was applied for those actions. There are also managerial explanations of the Plenum of the Supreme Court of the Republic of Uzbekistan on the qualification of the act with the components of the administrative prejudicial crime.
Administrative responsibility is established for intentionally inflicting a slight injury on the body that does not cause a short-term deterioration of health or a short-term loss of work ability. Criminal responsibility
for intentionally inflicting such injury on the body arises only if it is repeatedly committed within one year from the date of execution of the decision to impose an administrative penalty on a person for such an act (the first part of Article 109 of the Civil Code of the Republic of Uzbekistan)[12] .
In fact, criminal liability is one of the central issues studied in the theory of criminal law, and the articles of the Special Part of the Criminal Code form its basis. In recent years, this issue has become more relevant due to the liberalization of the criminal law. Most of the authors define the criminal responsibility that arises during the commission of a crime as a type of legal responsibility as the obligation of a person to answer for the crime committed [13] . When viewed from this point of view, it should be taken into account that administrative prejudice is only a type of criminal liability.
Crimes in the criminal law, depending on their nature and level of social danger:
• social risk is not high;
• not very heavy;
• heavy;
• is classified as a serious crime [14].
The legislator explains the classification of this type of crime as follows. In this case, crimes committed intentionally and punishable by imprisonment for a term of not more than three years, as well as crimes committed as a result of carelessness and punishable by imprisonment for a period of not more than five years, belong to the category of crimes with a low social risk.
Also, crimes committed intentionally and punishable by imprisonment for a term of more than three years, but not exceeding five years, as well as crimes committed due to carelessness and punishable by imprisonment for a term of more than five years - minor crimes belonging to the category.
Crimes committed intentionally and punishable by imprisonment for a term of more than five years, but not more than ten years, are classified as serious crimes.
Serious crimes include crimes committed intentionally and punishable by imprisonment for more than ten years or life imprisonment.
As defined in Article 15 of the Criminal Law of the Republic of Uzbekistan, crimes with a low social risk and not very serious can be committed both intentionally and recklessly. At this point, when talking about the issues of qualification of the act with administrative prejudicial crime law, it should be noted that according to the classification of all types of administrative prejudicial crimes, they are considered to be types of crimes with a low social risk.
However, the following administrative prejudicial crimes in the national criminal law are included in the category of less serious crimes:
• evading customs control provided for in Article 182 of the Criminal Law of the Republic of Uzbekistan (violation of customs legislation) or hiding from customs control or fraudulently using documents made to look like customs documents or tools, or without a declaration or using a declaration written in a different name, goods or other valuables in large quantities in the Republic of Uzbekistan transfer through the customs border);
• Article 186 1 of the Criminal Law of the Republic of Uzbekistan ( illegal production or circulation of a large amount of ethyl alcohol, alcoholic and tobacco products);
• 186, part 3 of Article 1 of the Criminal Law of the Republic of Uzbekistan (production, preparation, acquisition, storage, transportation or transfer of substandard or counterfeit drugs or medical products, as well as sale of drugs or medical products outside of pharmacies and their branches);
• Part five of Article 1863 of the Criminal Law of the Republic of Uzbekistan (violation of the order of retail sale of drugs containing powerful active substances by prescription, after the application of an administrative penalty for such an action or in large quantities);
• 192 Acts provided for in Article 4 of the Criminal Law of the Republic of Uzbekistan (compulsory involvement of business entities in sponsoring and other activities related to allocation of funds and other material values by the persecutor, law enforcement officer and official or employee of another state body and state organization )..
It can be concluded from this that not all the acts for which a person has been previously brought to administrative responsibility as a necessary sign of the objective aspect of the criminal offense may be not only crimes with a low social risk, but also less serious crimes.
When qualifying the act according to the components of the analyzed crimes, it is necessary to pay special attention to one aspect, subjectively, this type of act is committed only intentionally. That is, the lawmaker did not provide for administrative prejudice in the criminal elements of negligence. However, some scholars believe that the reflection of administrative prejudice in some norms of the criminal law does not fully meet the principles of humanity and justice, the repeated commission of an administrative offense within a year does not increase the quality indicator of the crime and the level of social danger, and the consequences of responsibility are terminated after the person is held responsible for the act he committed emphasizes the necessity [15] .
In a number of articles of the Special part of the Criminal Code of the Republic of Uzbekistan, the difference between the administrative liability and the similar criminal liability is the degree of social danger, especially if such similarities affect the administrative order, public order, public safety , the environment is clearly manifested in violations against the natural environment and natural resources. Disciplinary liability and criminal liability are very similar, especially in the case of offenses related to duty or military service, and their difference is determined by the level of social danger [16] .
Kh.Karimov also spoke about this and based on the requirements of Article 37 of the Code of Administrative Responsibility of the Republic of Uzbekistan, "if a person subject to a conditional administrative penalty has not committed a new administrative offense within one year from the date of the end of the term of serving this penalty, this person is considered not to have been subject to an administrative penalty. " [17] . Here, the
author tries to explain on the example of the Decision of the Plenum of the Supreme Court of the Republic of Uzbekistan dated June 27, 2007 "On judicial practice in cases related to intentional bodily injury", the concept of "from the date of entry into force of the decision to impose an administrative penalty" contained in the decision of the Plenum is part of Article 37 of the Code of Administrative Responsibility of the Republic of Uzbekistan. - points out that the concepts of "the person subjected to administrative punishment from the day of the end of the term of serving this punishment" are different from each other. According to him, "in the explanations regarding the emergence of criminal responsibility for the elements of the crime with administrative prejudice, based on the requirements of Article 37 of the Code of Administrative Responsibility of the Republic of Uzbekistan, the provision is based on the fact that the person subjected to administrative punishment is committed repeatedly within one year from the end of the term of serving this punishment." It is appropriate to give an explanation. In this case, the fact that it is committed after one year is the basis for qualifying the act not as a crime, but as an administrative offense [17].
It should be said that the institution of administrative prejudice is not found in the criminal law of most foreign countries. In particular, the newly adopted Criminal Code of the neighboring Kyrgyz Republic and the criminal legislation of the Republic of Kazakhstan do not provide for administrative prejudice.
Admitting that there are different views on the removal of administrative prejudice from criminal law, Professor N.A. Lopashenko supports the removal of administrative prejudice from criminal law [18] , while Professor V.P. Malkov is in favor of leaving this institution [19] . V.V. Volzhenkin and M.I. Kovalev state that the presence of administrative prejudice in criminal law contradicts the principle of non bis in idem [20] .
According to the above-mentioned scholars, a person is held responsible for his act, so there is no reason to hold him responsible for the next similar act as
a master crime. A.G. Bezverkhov states that administrative prejudice not only defines the act as a crime [21] , but also leads to partial decriminalization of crimes. Professor N.A. Lopashenko states that the identity of the person should not be the basis for defining the act as a crime as a basis for removing administrative prejudice from the criminal law [18] .
Analyzing the views of these scholars, author has concluded that the reflection of administrative prejudice in some norms of the criminal law does not fully meet the principles of humanity and justice, that repeated administrative offenses within one year do not increase the quality indicator of the crime and the level of social danger, after the person is held accountable for the act author support that the consequences of liability should also be terminated [15] .
The following can be concluded from the above:
• administrative prejudice is specific to the type of legal liability only criminal liability;
• according to their nature and social danger, the composition of administrative prejudicial crimes belongs to the category of crimes not only with a low social risk, but also not very serious;
• the content of administrative prejudicial crime is specific to acts committed only intentionally according to the sign of the subjective party;
• when qualifying the act with the norms of the law of administrative prejudicial crime, it is necessary to pay attention to the fact that the objective aspect of the composition of this type of crime must have been committed after the administrative punishment was applied to the person for such an act;
• in some norms of the criminal law, the reflection of administrative prejudice does not fully meet the principles of humanity and justice, the repeated commission of an administrative offense within a year does not increase either the quality indicator of the crime or the level of social danger, the consequences of the responsibility should be terminated after the person is held responsible for the act he committed.
References:
1. Rasulev A.A. The importance of criminal law in the classification of crimes. // A collection of scientific and practical conference materials on the problems of improving criminal legislation. - Tashkent: TDYuI, 2010. - B. 126.
2. Kudryavtsev V.N. Obshchaya theory qualification prespleniy. - M., 1998 . - S. 8.
3. Gauxman L.D. Prespleni qualification: law, theory, practice. - M., 2005. - S. 3.; Herzenson A.A. Qualification prespleniy. - M., 2007.; Andreev I.V. Teoretiko-pravovye osnovy qualificatsii prestuplenii: Autoref. diss... cand. walk science - Omsk, 2000. - S. 21.
4. Korzhansky M.I. Qualification prespleniy. - Kyiv, 2000 . - S. 10-11.; Levitsky A.G. Qualification prespleniy. - M., 200 1. - S. 140.;
5. Code of Administrative Responsibility of the Republic of Uzbekistan. National database of legislative information, No. 03/22/810/1095. URL: https://lex.uz/docs/97664#4775713
6. Rustambaev M.Kh., Abdurasulova Q.R., Akhrarov B.J.. Problems of developing the concept and doctrine of criminal law of the Republic of Uzbekistan. Published on the basis of the state grant number BV-F7-007-016.-T.: TDYuI publishing house, 2011. -166 pages. -B.92.
7. Usmonaliev M. Criminal law. General part. Textbook for higher educational institutions.—T., "Generation of the New Century", -B.16.
8. Criminal Code of the Uzbek SSR. (as amended and supplemented up to January 1, 1971). - T., Uzbekistan. 1971. -B. 93.
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9. The Criminal Code of the Uzbek SSR of 1926. With changes until September 1, 1946. - T., 1947. Directorate of Affairs of the Council of Ministers of the Uzbek SSR. A copy stored in the resource department of the National Library of Uzbekistan named after A. Navoi.
10. Criminal Code of the Republic of Uzbekistan. National Legislative Database, No. 3/22/794/0939. URL: https://lex.uz/docs/111453
11. Criminal law. General part: Textbook. / A.S. Yakubov, R. Kabulov et al. - Tashkent. Academy of Ministry of Internal Affairs of the Republic of Uzbekistan, 2009. - B 374.
12. Decision of the Plenum of the Supreme Court of the Republic of Uzbekistan "On judicial practice in cases related to intentional bodily injury". URL: https://lex.uz/acts/1592419#1593065
13. Santalov A.I. Teoreticheskie voprosy ugolovnoy otvetstvennosti. - L.: Izd-vo Leningradskogo universiteta, 1982. -
14. Criminal Code of the Republic of Uzbekistan. National database of legislative information, 19.10.2022, No. 03/22/794/0939. URL: https://lex.uz/acts/111453
15. Makhkamov O.M. Criminal-legal and criminological aspects of tax evasion or other compulsory payments: Doctor of Law. diss to get abstract. -T:, 2015. -B.15.
16. Usmonaliev M. Criminal law. General part. Textbook for higher educational institutions. - T., "Generation of the New Century", -B.111.
17. Karimov H. (2020). Nekotorye problemy qualificatsii suschestvuyushchikh transpleniy institute administrativnoy otvetstvennosti. Obzor zakonodatelstva Uzbekistana, (3), 67-71. izvlecheno ot URL: https://inlibrary.uz/index.php/uzbek_law_review/article/view/1838
18. Lopashenko N.A., Administrativnoy preyuditsii v ugolovnom prave - net! / N.A. Lopashenko // Vestnik Academy of the General Prosecutor's Office of the Russian Federation. - 2011 - No. 3 (23) - S. 64-71.
19. Malkov V.P., Administrativnaya prejudice: za i protiv / V.P. Malkov // Vestnik Akademii Generalnoy prokuratury Rossiyskoy Federatsii. - 2011 - No. 3 (23) - S. 58-64.
20. Volzhenkin B.V., Principle of justice and problemy mnojestvennosti prestupleniy po UK RF / B.V. Volzhenkin // Zakonnost. - M., - 1998 - No. 12 - S. 2-7; Kovalev M.I., Prestuplenie i prostupok / M.I.Kovalev // Problemy sovershenstvovaniya zakonodatelstva po ekrepleniyu pravoporyadka i usilenie borby s pravonarushenyami: mejvuz. sb. Nauch. tr. Sverdlovsk: Izd-vo Sverdl. walk in-ta, - 1982 - S. 3-14.
21. Bezverkhov A.G., Administrativnaya prejuditsialnost v ugolovnom zakonodatelstve Rossii: istoki, realii, perspektivy / A.G. Bezverkhov // Vestnik Samarskoy humanitarian academy. Series: Pravo - 2011 - No. 2. - S. 40-41.
22. Uktamovich K.F. TYPES AND CRIMINAL LEGAL ASPECTS OF THEFT OF PROPERTY USING BANK PLASTIC CARDS //European International Journal of Multidisciplinary Research and Management Studies. - 2022. -T. 2. - №. 08. - C. 7-10.
P. 12-13.
