On illegal entry into a home, premises or any other storehouse as a classification criterion for theft, burglary and robbery

The Criminal Code of the Russian Federation (CC of the RF) is known to create enhanced liability for illegal entry into a home, premises or any other storehouse for the purpose of committing theft, burglary or robbery. Classifying the entry into a home, premises or any other storehouse as a characteristic of the above crimes, legislators took into account the fact that seizure of someone's property connected with the overcoming of some obstacle impeding the access to it (the so-called constructional balks, functional barriers, locking devices) indicates the anti-social personality of a criminal. The characteristic "entry into a home, premises or any other storehouse" is familiar to Russian legislators; it was described in the CC of the RF. However, we see that legal regulation of this characteristic could be more perfect. There is some logical and system inconsistency in the definitions of home and premises as objects for entering. The criminal legal definition of "home" does not coincide with the one given in the Housing Code of the Russian Federation (HC of the RF). It is worth noting that criminal legislation of Russia (Part1, Article 2 of the CC) is called to protect public relations, rights and legal interests of a person, society and state. Criminal law shall protect such public relations that are protected and regulated by other branches of law; it should take into account the protection of the right to inviolability of home not as any human habitat but as an object of the right to housing. Thus, it is necessary to amend the CC in the following ways: 1) to accord the content of the Explanatory note of Article 139 with the provisions of Articles 15-19 of the HC of the RF; 2) to define the object of entering as "home, non-living premises and storehouse". The CC of the RF should determine what is understood by the entry as a mode for committing theft, burglary and robbery. A legislative definition of entry should combine its interpretation both in criminal legal science and judicial practice. It is important for law enforcers to know a general definition of "entry" and concrete limits of the concept. The detailed description of the above limits should include some typical situations of encroachment upon home, non-living premises and storehouse. The situation connected with encroachment can be reflected in the CC of the RF by some generalized concepts: "breaking", "special instruments and modes", "free access", "use of violence". "Breaking" covers the elimination of barriers and locks. "Special instruments and modes" include the use of technical devices, deceit and other contrivances of the criminal to access the property. The term "free access" means that theft was committed from an open home, non-living premises or storehouse. The word combination "use of violence" suggests either psychological or physical influence on the injured person.

Keywords

Authors

References