Carjacking: the structure of corpus delicti and the moment of termination

The present article deals with the unlawful seizure of a vehicle (carjacking) and the moment of the completion of this crime. The problem of determining the construction of the crime, as provided for in Art. 166 of the Criminal Code of the Russian Federation, is related to the simultaneous use of the terms ''misappropriation'' and ''carjacking'' in the description of the objective aspect of the crime, which have a different content. According to the author, the term ''carjacking'' represents the essence of this crime more accurately, since the owner is deprived of the possibility to exercise his powers over the vehicle exactly because the car is moved away by the offender from the parking lot. In this case, if the legislature replaces the term ''misappropriation'' by the term ''carjacking'', that is, the unlawful movement of a car or any other vehicle by any means, the final moment of the crime will be determined by the beginning of unlawful moving the vehicle from the place where it was, that is fully consistent with Paragraph 20 of Decree № 25 of the Plenum of the Supreme Court of the Russian Federation passed on December 9, 2008. Studying the sufficiency of the legal structure of the non-legitimate occupation of a car or another vehicle without the intent to steal (Article 166 of the Criminal Code), the author disproves the opinion prevalent in the theory of criminal law that carjacking only infringes the right to use the vehicle. In the absence of the vehicle the victim is not able not only to use it, but also to own and dispose it. Therefore, the offender causes real damage to property, which is expressed in the loss of a thing. It is proven in the article, that actually the construction of a carjacking is the construction of an attempted stealing of a vehicle. And because it is a legislative excess, so it should be excluded from the law. This solution is backed up by the cases when the person unlawfully taking possession of the vehicle for temporary use during the trip or after it decides to keep it. The courts believe there is the fact of carjacking turning into theft. Meanwhile, a less serious crime can turn into a graver crime only when the first one has not been made yet. Since carjacking according to the explanations of the Plenum of the Supreme Court is over at the moment of moving the vehicle away from the place it has been at, it is clear that by the time the offender starts intending to keep the vehicle and use it constantly, carjacking is already finished. Therefore, carjacking cannot turn into theft. But other variants of qualification are also possible. That is why the existence of carjacking in the criminal law cannot be considered reasonable.

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