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29№ 2 (34) 2014 m. K,a3aKfmaH PecnyönuKacu Зац rnuzapy UHcmumymuHUH^ waprnbicbi
Sarsembayeva Samal Tlekovna,
Kazakh Humanitarian Law University, Department of Criminal,
Penitentiary Law and Criminology, Master of Laws,
doctorale candidate PhD of Kazakh University of the Humanities and Law
PROBLEMATIC ISSUES OF DELIMITATION OF ROBBERY AND EXTORTION
As known, the determination of differences between brigandage and related crimes in practice often causes difficulties, for example, extortion. Therefore, the purpose of science of criminal law is to set criteria that helps to distinguish these compounds from each other.
There were several attempts in the theory of criminal law to solve the problem of differentiation of brigandage and extortion followed by violence. Thus, S.V. Poznyshev believed that brigandage differs from extortion by the fact that the content of brigandage is known evil, having to follow in case of default required, immediately, in the same means of extortion and the threat may be evil, but having to follow in the future [1].
In some sources, the authors have suggested that the main difference between brigandage and extortion is the nature of applied threat used by criminal. When brigandage occurs, threat is real and existed; criminal expresses the intention to put it in execution immediately, if the victim does not transfer the property at a moment of attack. When the brigandage occurs, there is no any significant gap in time between the threat and the moment of taking possession of the property (if it actually took place). On the other hand, when extortion takes place, threat of violence is towards the future, the offender expresses its intention to realize it sometime in the future if his demands are not satisfied [2].
In modern literature not only the threats are considered as demarcation criterion between brigandage and extortion of property, but also violence that is different in the compositions of brigandage and extortion with respect to objectives, content, direction and time of implementation [3].
From these examples of the problem of brigandage and extortion differentiation it can be seen that almost all authors emphasize the destination and the time of the applicable criminal violence. It seems reasonable, but in practice, if to
focus on the specifics of violence and intimidation, it is quite confusing to differ between brigandage and extortion. This is due to the fact that in brigandage, as well as in extortion whatever kind of violence is used, it is aimed to get other's property. Extortion is nothing but compelling or forcing the victim through threats and often physical violence to the behavior bringing benefits to offender or other person in whose favor he acted [4].
The similarity of brigandage and extortion is determined by the facts that they are located in one chapter about crimes against property committed for pecuniary gain, and simultaneously impinge on the property and on the individual. Moreover, the threat of violence is dangerous to life or health of the victim. The decision of the Supreme Court of the Republic of Kazakhstan (23 June 2006) «About judicial practice in cases of extortion» (p.14) states that during the process of solving the issue of delimitation between brigandage and extortion with violence, the courts should take into account that brigandage is a tool of taking or holding property, while in the case of extortion physical violence is a way to reinforce the threat [5].
In literature and jurisprudence it is assumed that when the brigandage takes place the threat of violence, which is dangerous to life or health of the victim, is to be executed immediately, as soon as resisted taking possession of property; whereas, during the extortion it is to be executed in more or less distant future, if the condition or requirement to transfer property is not satisfied. Decisive admittedly not this difference and the other it is when a person withdraws the brigandage of property ownership of the victim, and if this is not extortion.
At the same time it should be kept in mind that, if the solicitation involves direct seizure of property of the victim, when there is a real set of crimes, these actions should further be qualified depending on the nature of violence, brigandage or burglary.
In the case of extortion offender seeking to seize other people's property or rights to purchase the property or other property to get benefits. Article 181 of the Criminal Code of the Republic of Kazakhstan defines extortion as « demand for the transfer of another's property or rights to property or other acts property under threat of violence or destruction of or damage to another's property, and under the threat of the spread of information that defames the victim or his family or other information, disclosure of which may harm the interests of the victim or his relatives «[6].
The requirement for the transfer of property, which is under threat of any adverse effects, is psychological violence. Therefore, the object of extortion as well as brigandage is not only property but also the identity of the victim. So, for the most dangerous types of extortion the real expressed threat confirmed actual use of physical violence. Because extortion is the ultimate goal of treatment of the property in its favor, it is, as well as brigandage, should be considered as a way of taking possession of property.
The decision of the Supreme Court of the Republic of Kazakhstan dated 23 June 2006 «On the judicial practice in cases of extortion « (item 5) under the threat of information that defames the victim or his relatives, or other information, disclosure of which may harm the interests of the victim or his relatives, defined as «demand for the transfer of another's property or rights to property or commit other acts of a property nature, accompanied by the threat of disclosure of any information that may harm the honor and dignity of the victim» [7]. The threat of defamatory information, is one of the ways of extortion, which is called blackmail. The nature of the information does not matter: how they are defamatory, whether true or represent fiction relate personally victim or his relatives. It is important that the victim tries to keep such information confidential, and the threat of their announcement guilty used to force him to transfer the property. Along with the threat of spreading defamatory information provided is also responsible for the threat of «other information that could cause substantial harm to the rights or legitimate interests of the victim or his family». It enters into the framework of the law practice, which has long followed the path extension interpretation of the term «defamatory information». In case when victim or his relatives actually announced details obviously libelous or offensive, deed, in the presence of bases to what qualifies as jointly slander or insult.
Extortionist can aim to obtain property, or singly,
or in the form of periodic payments. In recent years, the widespread use of extortion as obtaining from merchants, or businessmen periodic fee forcibly imposed on them under the threat of unequal content services for alleged «protection» premises for «assistance» in the sale of products for the settlement of relations with other groups or regulatory authorities and all that takes place. Such kind of extortion is sometimes called «the racket». The identification of the concept of extortion is wrong. Extortion - this particular composition of crimes against property, characterized by distinct mode of action. Same racket is a special kind of organized crime, one of the forms of its manifestation. Racket grows from extortion, extortion is based on, but not confined to it. About racketeering as a phenomenon we can say with regard to some of the most dangerous cases of extortion committed by organized groups and compounds, usually with other crimes bribery, malfeasance corrupt law enforcement and regulatory authorities, the various economic crimes, pornography, etc. The responsibility in such cases comes not only for extortion, but also depending for the actions of the perpetrators of other offenses.
Submission of certain requirements - this is the first action item at extortion. The second element is a threat mandatory application of the appropriate «sanctions» if they fail to. Content threats are: a) violence, and b) the destruction of or damage to property, and c) for the victim unwanted dissemination of certain information. These types of threats may be applied alternatively or in combination. In contrast to the violent brigandage and brigandage with extortion threat of violence does not imply an immediate application. Blackmailer threatens to use violence in the future in case of default of its requirements. It does not matter whether he intended to actually carry out his threat. It is important that the victim perceives as a real threat, by virtue of which can go to fulfill the requirements of the blackmailer.
Brigandage and extortion differences are quite substantial. They appear most vividly in the characterization of the subject encroachment and mode of action. Subject of abuse in the brigandage is always someone else's property, in the form of concrete things having material value. Subject of an encroachment at extortion are not only things, but also the right to property, as well as action property. For example, the blackmailer may require registration of a good bargain property or destruction of his IOU victims. In case of brigandage, the perpetrator may threaten the victim only with violence dangerous to life or health. Threat as a way
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of acting in extortion may be different in nature: the extortionist can threaten not only the use of the victim or his relatives to violence (both dangerous and not dangerous to life and health), but also to disseminate information, defamatory victim or his relatives, or other information that could cause substantial harm to the rights or legitimate interests of the victim or his family.
If the features that characterize the composition of brigandage and extortion are significantly different, the distinction between these crimes is not difficult. Complexity is the delimitation of brigandage extortion if they are the same in the main features. This occurs when the subject is the property of extortion in the form of specific things and when an extortionist threatens to apply to the victim or his relatives with violence dangerous to life or health. In such cases, robbery and extortion differ in time to bring the threat of execution. In case of brigandage threat is characterized prior exposure to the victim, the victim plays a role preventing the immediate appeal from physical violence. Failure to comply with the victim threatening cause an immediate reduction in the threat of execution , that is, the use of physical violence dangerous to life and health. For brigandage composition requires that the offender threatened the victim with immediate violence. Also weapons or fake weapons are of ten used in the robbery, but the composition of extortion does not. If the blackmailer threatens victim with weapon, or uses it, in this case, its action should be reclassified from extortion to robbery.
When the offender threatens the victim of extortion to fulfill threats, it is the use of violence in the future, in case of failure to hold specific claim. Between the threat and use of physical violence, there is a gap in time, whereas in the brigandage, it must be applied immediately after the threat. Different moments bring threats and determine the performance difference between brigandage and extortion by the degree of public danger. When extortion victim has time and opportunity to apply to the authorities to take precautionary measures and protect themselves from claims extortioner. When the brigandage victim is deprived of this opportunity, as it is located in a position where the offender is able to immediately implement the physical violence, the victim of brigandage when there is no other way but to fulfill the requirements addressed to him or face criminal violence. This indicates a higher degree of social danger threats in brigandage than for extortion.
Difference brigandage and extortion carried out are by the method of acquisition of the property and
the time of violence. If the property is not stolen extortion, and transmitted by the victim, the threat of violence can be carried out in the future. At brigandage, violence applied simultaneously with the withdrawal of property. Property in case of the brigandage goes to the thief immediately.
It should be noted that the point of transfer of the property may be only a secondary criterion of demarcation brigandage and extortion, as the fact of transfer of property is not a sign of any brigandage or extortion composition as both formal composition.
Thus, the decisive criterion for distinguishing between robbery and extortion is the time to bring the threat of violence to enforce.
Thus, the penal codes of different countries subject to brigandage see only movable property, and extortion - all property where the object appears as a significantly larger amount of property relations. These include the German penal codes [8], Bulgaria, Spain, France, Sweden, India, Czechoslovakia, the Mongolian People's Republic.
Obviously, the approach to the subject of theft as to movable property is more common. Originally category of criminal law «theft», «stealing» or «theft» is definitely introduced to describe the removal of personal property that continues to prevail over the legal system in force tradition. While civil matters do not stand still long and have developed other ways of dealing with the property, except for touch and movement. One of the reasons for selection of extortion is certainly the influence of this old-fashioned approach to theft.
Brigandage and extortion difference in the types of coercion used (mental and physical for extortion to brigandage) see the penal codes of New York, India, Germany, Bulgaria [9], the Mongolian People's Republic [10].
Other codes directly do not reflect this difference, but soliciting them except threats of violence, can be accomplished with threats and otherwise, are expressed in physical activities in respect of articles or even threats to the legitimacy of an ax to grind (blackmail) (Criminal Code of Sweden, France and Czechoslovakia).
The Criminal Code of New York theft involves the unlawful taking or acquisition of another's property with the intention to deprive another person of his or appropriate it. Extortion (extortion) refers to the internal form of theft (item «e» part 2 § 155.05), when a person «causes or induces another person to deliver the property to himself or to a third party by spreading fear». Brigandage allocated in the form of qualified theft as» a person forcibly steals property and commits brigandage if in the course of stealing
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it uses or threatens the immediate use of physical force against another person» [11].
Actively facilitating theft, when, who, «in order to make a profit of another, by force or intimidation, to perform an action or make a deal at the expense of his property...» [12], sees the difference between «brigandage with violence» and extortion Criminal Code Spain. A similar approach can be noted in the Criminal Code of Czechoslovakia. Handling threats to the future with extortion or an indication of the «attack» in the brigandage division complements
these formulations Code Sweden and codes of postSoviet countries (Mongolian People's Republic, Albania, etc.).
World experience shows that the end of all thefts, which are the main object of public relations of property, can only be associated with the removal of the property or the acquisition of the rights to it, that is, an encroachment on property. Nature dictates the need for dissemination of theft since its closure on all forms, including extortion and brigandage.
List of References
I. Poznyshev S.V. Russian special part of criminal law. Comparative essay critical departments of the special part of the old and the new Code .P. 230.
2 .VladimirovV.A, Lyapunov Y.I. Responsibility for mercenary attacks on socialist property. M., p.204-205.; Commentary to the Criminal Code of the RSFSR. Moscow, 1984. P. 225.
3. Stupin S.A. Criminally-legal and criminological problems Combat Extortion: Avtoref.dis.kand. yurid.nauk, Irkutsk city, 2002, p.15; Bashkov A.V. Criminal legal aspects of extortion : Avtoref. dis.c.y.s., Yekaterinburg, 2001, p.22.
4. Eliseev S.A. Crimes against property under the criminal legislation of Russia (Theory questions). Moscow, 1998, p. 121-122.
5. Plenum of the Supreme Court of the Republic of Kazakhstan dated 23 June 2006 "On the judicial practice in cases of extortion" (i.14).
6. The Criminal Code of the Republic of Kazakhstan dated July 16, 1997 № 167 -I.
7. Plenum of the Supreme Court of the Republic of Kazakhstan dated 23 June 2006 "On the judicial practice in cases of extortion"(i.5).
8. Criminal Law of the Federal Republic of Germany: a tutorial / ed. Kozochkina I.D. - p.83.
9. The Penal Code of Bulgaria extortion involves similar Criminal Code Germany levers "and the threat of force", that is, limited mental coercion, intimidation and brigandage allows immediate criminal acts and " violence".
10. The Criminal Code of the MNR brigandage associated with physical coercion, is related to crimes against public security and is associated with a sign of "attack".
II. Criminal Law USA: Sat regulations / comp., Br. Ed. and author of introd. Art. Kozochkin I. D. -P.144.
12. Penal Code Spain/ed. and foreword. Kuznetsova N.F. and Resetnicov F.M. - P.78-79.
Цазгргг кунде, тэж1рибеде, цылмыстыц сабацтас цурамыныц шектеу жагдайлары Yлкен циындыц болып табылады. Осымацалада автор царацшылыцпен цорцытып алушылыцарасындагы айырмашылыцты корсетт, осы щылмыстарды аныщ шекараларга болед1. Сонымен щатар, автор тек айырмашылыгын гана емес, царацушылыц жэне цорцытып алушылыцтыц белгыергшц уцсастыгын корсетед1. Царацшылыцтыц пен куштеп алушылыщтыц нег1зг1 белгтер1 уцсайтын кезде, олардыц шектеу мэселес щиындыщ цурайды. Мацалада, сонымен б1рге, осы щарастырылган щылмыстардыц дурыс саралау мен оныц шешу жолдарымен байланысты басца да проблемалыц сурацтар талданады.
Ty^h свздер: царацшылыц, бопсалаушылыц, царацшылыцтыц жэне шектес цылмыстыц бмкттг1, цорцытып алушылыцтан царацшылыцтыц шектеу1.
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№ 2 (34) 2014 ж. Цазацстан Республикасы Зац шыгару институтыныц жаршысы
На сегодняшний день наибольшую трудность на практике вызывают случаи отграничения смежных составов преступлений. В данной статье автор пытается провести черту между разбоем и вымогательством, которая четко разделит границы данных преступлений. Вместе с тем, автором отмечается не только различие, но и сходство признаков разбоя и вымогательства. Так как сложность составляет отграничение разбоя от вымогательства в том случае, если совпадают их основные признаки. Также в статье анализируются другие проблемные вопросы, связанные с правильной квалификацией рассматриваемых преступлений и пути их решения.
Ключевые слова: разбой, вымогательство, квалификация разбоя и смежных преступлений, разграничение разбоя от вымогательства.
Today the greatest difficulty in practice is the cases of separating related offenses. In this article, the author attempts to draw the line between brigandage and extortion; it will clearly define the boundaries of these crimes. What is more, the author speaks not only about the differences, but about the similarities of these areas as well. The reason is that the similarity of main characteristics of brigandage and extortion makes it difficult to differentiate them. The article also examines other issues connected with the proper qualifications of the crimes and the ways to solve them.
Keywords: brigandage, extortion, brigandage and related qualifications crimes, division of brigandage and extortion.
Самал Тшеккызы Сэрсембаева,
Каза^ гуманитарлыщ зац университет^ ^ылмыстьщ жYргiзу жэне криминология
кафедрасыньщ докторанты, зац гылымдарыныц Maracrpi
^аракшылык пен бопсалаушылыктыц ара-жтн ажыратудыц проблемалык мэселелерi
Сарсембаева Самал Тлековна,
Казахский гуманитарно-юридический университет, докторант кафедры уголовного, уголовно-исполнительного права и криминологии, магистр юриспруденции
Проблемные вопросы разграничения разбоя и вымогательства
Sarsembayeva Samal Tlekovna,
Kazakh Humanitarian Law University, Department of Criminal, Penitentiary Law and Criminology, Master of Laws, doctorale candidate Phd of Kazakh University of The Humanities and Law
Problematic issues of delimitation of robbery and extortion
