CC BY
37Sunnatov Vokhid
Lecturer of Criminal Law, Criminology and Anti-corruption Department
of Tashkent State University of Law ORCID: 0000-0001-7084-555X E-mail: [email protected]
SPECIFIC ASPECTS OF MOTIVATION AND PURPOSE IN THE QUANTIFICATION OF CAREER FRAUD CRIME
Abstract: This article clearly defines the scope of official crimes, their symptoms, the importance of further improving the qualification and prevention of this type of crime. The concept and scope of official crimes are currently important subjects among theoretical scholars and law enforcement professionals. It has been widely debated that official misconduct causes significant harm or severe damage to the state, public interest, or the rights and legally protected interests of citizens as a result of an official's abuse ofpower or intentional breach of duty. It is not easy to classify an act committed by a person using an official position as a crime of official fraud unless there is intent to commit it. What is clear from the content of the law is that the person's mental attitude towards the committed act and the consequences arising from it determines the form of the offense. The question of the form of guilt must be illuminated by simultaneous comparisons, both in relation to the action and its consequence. The mental attitude of a person towards the act he has committed can, in the opinion ofmost authors, only be in the form of the right revenge. The fact that an official specified in the law knowingly use his official powers indicates that he has a direct intent to commit an act. An official who appears to be the subject of a crime is an expert in his or her profession who fully understands his or her rights and obligations.
Keywords: official crimes, office fraud, corruption crimes, optional character, qualification of the work, the motive and purpose of the crime, official person, subjective side, objective side, a form of guilt, strategy of action.
Judicial and legal reforms being carried out in our country today require a review of the system for combating official crimes and this type of crime.
In particular, the approval of the Action Strategy for the five priority areas of development of the Republic of Uzbekistan for 2017-2021 and its second direction called "Priorities for ensuring the rule of law and further reform of the judicial system" to prevent crime, corruption and official misconduct in society. It is not an exaggeration to say that reducing crime, as well as coordinating activities in the fight against crime and crime prevention in this area is improving the organizational and legal mechanisms of combating corruption and increasing the effectiveness of anti-corruption measures.
At the same time, the issues of clearly defining the scope of official crimes, their symptoms, qualification, and further improvement of prevention of this type of crime are of great importance today. This is because the concept and scope of official crimes are currently an important subject of debate among theoretical scholars and law enforcement professionals. Officials in the field say that official crimes are acts that cause significant
harm or severe damage to the state, public interests, or the rights and legally protected interests of citizens as a result of intentional abuse of power by an official.
Despite the fact that the fight against crime in the Republic of Uzbekistan, especially official crimes, is intense, the impact of external factors on crime, the development of free-market relations, the emergence of new types of crime, official crimes, bribery are leading to an increase in corruption crimes such as fraud. In this regard, it is important to further improve this institution, eliminate existing problems while systematically develop and implement preventive measures.
Finding a solution to the above issues requires, first of all, an analysis of the legislation, amendments, and additions to them, thereby clarifying the scope of official crimes, qualifying these crimes, defining a system of specific measures for their prevention, further expanding and strengthening them.
In this regard, MH Rustambaev states that the correct identification of the subjective aspect of the crime is important in determining the level of social danger of the offender. Inadequate investigation of the
purpose, motive, and guilt of the crime leads to errors in the classification of the crime, which leads to the criminal prosecution of the person for an act he did not commit, which violates the principle of fair sentencing. Therefore, in judicial practice, great attention should be paid to the correct determination of the motive, purpose, and guilt of the crime, because according to Article 9 of the Criminal Code, "a person is liable only for socially dangerous acts proven in the manner prescribed by law." In the theory of criminal law, a necessary feature of the subjective aspect of the crime is the intentional or negligent form of the offense. The purpose and motive are optional features of the subjective aspect of the crime, which affect the qualification of the crime only if the crime is directly specified in the legal norm; otherwise, they do not affect the qualification of the crime but should be taken into account in sentencing [1].
Hence, we can see from this that the subjective aspect of the crime is the inner mental attitude of the person who committed the act, which is considered a crime in the criminal law, to his own action. While the necessary sign of the subjective side is guilt, the optional sign is the motive and purpose. An optional mark is the one that does not affect the qualification of the act in other cases, which are essential in the qualification of the act in cases specifically provided by criminal law. A necessary sign is a sign that affects the qualification of all acts, without which it cannot be considered a crime. The motive of a crime is a tendency, determined by certain needs and interests, which leads to and manifests in a person a commitment to commit a crime [2].
The motive for the crime is one of the optional features of the crime's subjective side, which plays a vital role in qualifying the act correctly, distinguishing it from other crimes, and imposing a just punishment. The motive of the crime represents the emergence of a specific goal and its direction. In some cases, the motive for the crime is a necessary sign of the crime; in other cases, it is an aggravating circumstance. The motive for a crime is an inner feeling that arouses in a person the decision and desire to commit a crime. The motive for the crime is unique to intentional crimes. The motive of the crime is formed on the basis of jealousy, revenge, hooliganism, ethnic, personal malice, and so on. Other crimes committed may include concealment, the taking of corpses for transplantation, sexual gratification, the promotion of war in order to worsen international relations, and uncontrolled gain [3].
We can see that the motive for the crime is defined differently in different kinds of literature. In particular, MH Rustambaev describes the motive as follows: Thus, the motive gives rise to the desire for criminal activity
with force and intensity, which is an active, motivating factor (stimulus) of the person. The motive for a crime is a conscious or unintelligible inner desire of certain needs and interests that the person relies on to commit the crime."
M.Usmonaliev's definition of a criminal motive is as follows: The motive of a crime is an internal motivating force (intention) that gives a person the courage to commit a crime aimed at satisfying certain requirements and interests and acts on him when committing a crime.
It is clear from these definitions that the motive for a crime is the emotional phase of preparation for a crime. That is, it passes through a means of force that encourages a person to commit a crime. The motive of the crime is a process that occurs in the human mind; it is formed in the thinking part of the mind. In this respect, motive and purpose can also be distinguished from each other. The mental and volitional processes of a person at the time of a crime represent guilt in the crime. The subjective side of the crime consists of a unit of mental and volitional processes of the person, which is reflected in the objective side of the action (inaction) of the person's behavior, which is considered a criminal act. In other words, the subjective side is determined by analyzing the signs that represent the objective side of the crime.
As a result of studying the definitions given to the motive of the crime, we have witnessed that there is no consensus among scholars on the motive of the crime. At this point, we found it necessary to analyze the definitions given to the motive by various scholars. After all, studying them will serve as a basis for a single conclusion in this regard.
Motiv (Latin) moveo. - means to act; it is a driving force in a person to perform this or that action. Motives ("mens rea"), which come as a necessary sign of the subjective side of the crime, are cases that should be studied separately in terms of social danger. For this reason, the legislature reflected them in criminal law as a necessary feature of the subjective side of the crime.
We will continue to delve into the essence of the crime by continuing the definitions given by experts. In particular, M.Kh. Muzdubaev describes the motive as "the motive of the crime is a certain need, arouser, direction, manager, control of the criminal act, forming its meaning and the basis for choosing an inappropriate goal, the means, and means to achieve it." We can see from the definition of M.Kh. Muzdubaev that the motive of the crime forms and controls the criminal act. However, one cannot agree with the idea that motive is a means and a means of achieving crime.
According to J. Abhia, a motive is an internal reason (feeling) that motivates a person to commit a crime, expressed in certain aspirations, inclinations, desires. According to AI Rarog, the motive is an internal motivating force determined by necessity and interests, which guides a person in committing a crime and decides to commit a crime. As we can see, J.Abxia and A.I.Rarog gave a much simpler and more succinct description of the motive. But they took a one-sided approach in defining the motive. In our view, the motive for a crime is not always determined by a particular interest. A person can lose his life for no reason, without any interest, for example, out of pity for the victim (euthanasia). Here the motive of compassion is not the personal interest of the murderer, but the personal interest of the victim, his personality, his life. Hence, the motive may not only be for the personal benefit of the person who committed the crime, but sometimes only for the benefit of the victim as well. However, we are far from believing that the scholars cited above have erroneously defined the motive because everyone bases their approach on something.
A motive is an element of the psyche of the individual, which at the same time manifests itself as a reflection of socially acquired and directly influencing external factors, that is, as a «combination» of social and mental spheres. MH Rustambaev also expressed his opinion on this issue, saying that the motive for the crime is a conscious or unintelligible internal desire of certain needs and interests, which the person relies on when committing a crime. From these definitions, we can see that the motive of a crime is a force in a person that acts as a support in the commission of a crime and is constantly in motion.
Thus, on the basis of the motive, the purpose of the crime is formed, the motive and purpose are combined, creating the basis for the intellectual and voluntary activity of the subject associated with the commission of the crime. That is, the motive is manifested in the intellectual activity, the goal in the voluntary activity. But they cannot be imagined in isolation.
Based on the analysis of the current criminal law, we can conclude that a motive is a motive that motivates a person to commit a crime, prepares the psyche of the person to commit the crime, forms a criminal behavior in it, is permanent or unstable, i.e., interrupted for certain reasons. It is the sum of the inner emotional power and inclinations that can remain.
It can be understood from these definitions that the purpose of a crime is the result that an individual seeks to achieve in the future by committing a crime. This result can be both tangible and intangible.
At the same time, criminal law represents the subjective side as the most important event and shows its criminal significance in the qualification of the crime and the imposition of punishment. In criminal law, depending on the nature of the offender's mental attitude toward his or her actions, the subjective aspect of the crime structure includes characteristics such as guilt, motive, purpose, and emotion.
In order for an official to be found guilty of official crimes, the following must be considered:
1) the activity of any official is a part of the state mechanism, which has the powers and obligations to address issues related to the enterprise, institution, or organization, its subordinate community, and individual citizens. His attitude to the state and public apparatus stems from his attitude to his duties and responsibilities. However, according to MT Ozdoev, the official who committed the crime is not the reputation of the state apparatus, but only himself as a person who did not justify the trust placed in him. However, a person who commits an official crime will not only damage his reputation, but also the reputation of the entire industry, state power, society, and will lead to the loss of public confidence in him.
Second, within the framework of the management of the national economy and the powers vested in it, the official determines the development of the network apparatus, which he manages. But even so, there will be subordinate officials who will act under the leadership of such an official, who will carry out his orders. He may not be guilty of the act committed in such a case. In addition, the degree of guilt of officials may also vary when there is such an attitude to the offense. Therefore, judicial officers are required to pay special attention to determining the degree of guilt of the official.
But the existence of guilt is not enough to assess an individual's actions, i.e., the motive and purpose of the crime are also of great importance.
In official crimes, it is clear from the text of the law that an official using his official powers to commit illegal acts is committed for malicious purposes. This is also of great importance in qualifying the offense.
The following features should be considered when determining the guilt of an official in career fraud. First, any official is part of the mechanism of the state apparatus, which has the powers and responsibilities to address the issues of the enterprise, organization, or institution, its subordinate community, and individual citizens. His attitude to his duty stems from his attitude towards the state and the public apparatus. Accordingly, it is impossible to agree with VI Solovev's opinion that «an official who commits a crime only embarrasses
himself as a person who does not justify the trust placed in him, not the reputation of the state apparatus.»
Second, within the framework of the national economy and at the level of the powers vested in him, the official determines the level of development of the sector he manages. However, there will also be subordinate officials who will act under the authority of such an official and carry out his orders. In such cases, the act committed may not have the characteristics of guilt. In addition, attitudes toward the offense may also vary depending on the guilt of the officials in such cases. Therefore, the investigative bodies are required to pay special attention to determining the guilt of the official. But guilt itself is not sufficient, even if it is a necessary sign of the subjective side in the assessment of a person's actions. In this case, the motive of the crime is also of great importance.
In the crime of official fraud, it is clear from the law that the official's intentional use of his official powers to commit illegal acts represents malicious intent. This is also of great importance in qualifying a crime.
Unless there is intent to commit an act committed by a person using his official position, the act committed cannot be qualified as a crime of official fraud. It is clear from the content of the law that the mental attitude of a person towards the act committed, and the consequences arising from it determines the form of guilt. The person is aware of the possible consequences, wants it to occur, or consciously allows it, whether he wants to or not. This means that the crime of career fraud can be committed both intentionally and indirectly.
However, there are two conflicting views in criminal law theory. In particular, most authors argue that the crime of career fraud can only be committed with the right intent. Some legal scholars, however, say that the curve may also be intentional in relation to the consequences; such an idea can be found more often in the comments to the JC. According to them, the accused knows and wants to act in the exercise of his official powers and also wants the consequences provided for in the law to occur or consciously allows it.
The question of the form of guilt must be illuminated by simultaneous comparisons, both in relation to the action and its consequence. The mental attitude of a person towards the act he has committed can, in the opinion of most authors, only be in the form of the right revenge. The fact that an official specified in the law knowingly uses his official powers indicates that he has a direct intent to commit an act. An official who appears to be the subject of a crime is an expert in his or her profession who fully understands his or her rights and obligations. It is also incorrect to say that he acts as if
he understands the consequences of his actions and does not want the consequences to arise. In the qualifying process under Article 209 of the CC, the court usually notes that the act was committed by the subject (without allowing the curve to be intentional), consciously wanting to act.
When a person commits a crime of official fraud, he knows that he has used the right or opportunity given to him, understands the social danger of the act (mental state), wants to commit it, and strives to commit it (voluntary state).
If a person does not understand the social danger of an act without realizing it, then there is criminal negligence itself. If we rely on such a situation, it will be a career fraud committed through negligence, which is contrary to the essence of the law.
In career fraud, the act itself is done only intentionally. There is also no consensus in the literature on the psychological response to the socially dangerous consequences of career fraud. Here, too, two main points can be made. Many argue that career fraud is more typical of a mixed form of guilt. Here we are talking about a different form of mental relationship in relation to the action and the consequence that follows. Proponents of this view believe that an act committed in the exercise of official authority is characterized only by a rightful intention, and the consequence is characterized by a relationship of guilt beyond the correct form of intent to criminal negligence.
Proponents of this view believe that it is necessary to study the mental attitude of the official to the action and the mental attitude to the socially dangerous consequences that arise from it. According to them, the first form of guilt included in the criminal law should apply to both the socially dangerous act in the crime committed and the consequences arising from it.
The subjective aspect of the crime of career fraud requires the following features:
a) in accordance with the legal requirements of the offense, it is not interpreted separately in relation to the criminal act and the consequence;
b) an action has no meaning without the action it causes, just as an action has no meaning without the action it causes;
(c) The law incorporates all possible offenses - an attitude of intent or negligence towards the consequences as a result of a person's socially dangerous act. Therefore, career fraud can be committed only intentionally; the person can see the consequences provided by law and act to seek its origin.
It is of great importance to determine the purpose and motives of career fraud in order to correctly determine
the form of the guilt of the crime under consideration. However, the motives and purposes of the act are not considered to be elements of this crime and are taken into account by the court when imposing a sentence. «A motive acts as a driving force for a crime and represents a motivating factor for a person to knowingly commit a crime.» M.H.Rustambaev, R.A.Zufarov express the same opinion in this regard.
Criminal law is, in fact, embodied in the rule of the form of guilt, both in relation to the act and in relation to its consequences. In our opinion, the criminal law, based on this rule, aims to take into account the specific features of the subjective side of various crimes in the law. However, in both criminal law, criminal law theory, and judicial practice, guilt in crimes of a formal nature is described only in relation to the act, and the consequence is outside the scope of the crime.
In crimes of material nature (e.g., murder, theft), the criminal law does not pay attention to the action and its consequences because, in these crimes, these features of the subjective side of the crime are consistent. In the crime of career fraud, the law specifies the nature of the action and the exact consequences of the crime. This makes it possible for the objective party to resolve the nature of the guilt differently in relation to these necessary features.
According to some criminal cases, an official is not always willing to infringe on the rights and interests of citizens protected by law or the interests of the state and society in the course of committing official fraud.
The crime of career fraud has a different character. The characteristics of this crime do not change from the person's or other mental attitudes towards the outcome. Serious damage is a mandatory requirement of the law, and it must also be related to the act of guilt and cause.
The following conclusion can be drawn as a result of the study of the theoretical and judicial practice of the mental and volitional state of the criminal form of
the crime of career fraud. The act provided for in Article 209 of the Criminal Code of the Republic of Uzbekistan, as noted above, can only be in the form of direct intent, and the official understands its social danger and wants it to arise.
The theory of criminal law states that malice or other malicious intent in the crime of career fraud should also be a necessary sign of the crime. In particular, such an idea can be found in the works of B.A.Blinder, S.G.Zakutsky, B.V.Zdravomyslov, A.Ya.Svetlov, V.F.Kirichenko.
The law does not have to specify the motive of the crime, but it does create a necessary condition for classifying a crime or distinguishing it from other official crimes.
In conclusion, it is not enough that a person has official authority to prosecute a person for the crime of career fraud. According to the law, an action committed by an official using his power or official authority for personal gain or other gain is a necessary sign.
Authority is a set of specific rights and obligations for a specific situation, and it is incorrect to understand that an official can apply them to a specific person, a group of individuals. Because the law also provides for the representatives of the authorities as to the subject of official crimes. They have the powers of a public official, and their scope of authority is of a public nature.
The theory of criminal law also speaks of the third group of crimes committed by officials in connection with their official powers. In the literature, they are referred to as «alternative official» crimes or «other crimes committed by officials using official authority».
Crimes that fall into this group can be committed by both an official and a non-official, unlike the previous two groups of crimes. These crimes constitute special types of official crimes when committed by an official using his official powers. According to this main object, the role of the crime in the system of the Special Part of the Criminal Code is determined.
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