Complicity of special and non-special (general) subjects of crime in the light of a criminological and legal approach

The aim of the article is to substantiate the expediency of application of a criminological and legal approach approach developed by the author to the assessment of acts of special and non-special (general) subjects of joint crimes. The analysis of the materials of judicial practice shows a lack of a uniform approach to the application of Part 4 of Article 34 of the RF Criminal Code, which establishes the rule of qualification of jointly operating special and non-special (general) subjects of crimes. There are also different explanations of the highest court in relation to certain types of crimes. In theory, despite the protracted discussion since the Soviet era, there is no unanimity: on the one hand, there is a need to reflect the group nature of a crime in the qualification; on the other, the proposed options do not fit into the criminal law doctrine of complicity. The empirical basis of the study is the materials of judicial practice in cases on crimes committed by special and non-special (general) subjects. The methodological basis of the work is represented by a combination of specific research methods inherent in criminal law and criminology as independent but interrelated branches of scientific knowledge, which allows to overcome the formal criminal law characteristics of an institution and reach their deeper, essential features. A criminological and legal consideration of the identified problem involves primarily an appeal to the mechanism of committing a crime with a special subject. Its specificity lies in the fact that, as a party to public relations protected by criminal law, the subject aggresses them using his/her status capabilities. At the same time, when crimes are committed, along with specific social relations, the accompanying benefits protected by criminal law also suffer. Causing harm to these additional objects is associated with the commission of crimes that do not require specific characteristics of the subject of a crime, so they may well be committed by a non-special subject. Hence, crimes aimed at multiple objects committed by a special subject can as well be committed jointly with a non-special subject. It is in this case that the criminological and legal understanding of complicity in the form of joint participation should be supplemented by a criminological component: the understanding of jointness should not be hindered by the lack of the subject's ability to endanger a certain object de jure in the presence of such an opportunity de facto. Taking into account the above, it is proposed to amend Part 4 of Article 34 of the RF Criminal Code which allow the law enforcer to reflect the group nature and, consequently, the increased public danger of relevant crimes when qualifying them.

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