Volitional content of intent in a crime with a formal composition

Abstract

This article is devoted to the problem of the volitional content of intent in crimes with formal compositions. The author analyzes the configuration of types of intent in crimes with formal compositions from the point of view of the current criminal law and the theory of criminal law. It is concluded that a crime with a formal composition with indirect intent is impossible, since the volitional criterion of indirect intent (“conscious assumption”) It is characterized by substantial uncertainty, while the volitional criterion of direct intent (“desire”) is the only definition that exhaustively expresses the volitional content of intent. In the article, by analyzing the doctrine of criminal law of the XIX–XX centuries. The problem of a person’s desire to commit an action (inaction) regardless of the onset of socially dangerous consequences is considered as a volitional criterion of intent in a crime with a formal composition: the author concludes that intent in crimes with a formal composition can only be described using an intellectual criterion, since the desire to commit an action (inaction) regardless of the onset of socially dangerous consequences is an element of the sanity of the subject of the crime, but not of guilt. The author comes to the conclusion that bringing to criminal responsibility for the commission of crimes with formal compositions is an objective imputation, while in order to avoid objective imputation, it is possible to construct many compositions of crime traditionally attributed to formal ones as compositions of danger.

References

1. Dagel, P.S. and Kotov, D.P. (1974). The subjective side of the crime and its establishment. Voronezh (in Russ.).
2. Zlobin, G.A. and Nikiforov, B.S. (1972). Intent and its forms. Moscow (in Russ.).
3. Lebedev, V.M. (Ed.) (2017). Commentary on the Criminal Code of the Russian Federation: In 4 vols. Vol. 1: General part (article by article). Moscow (in Russ.).
4. Krylova, N.E. (2012). Controversial issues of the doctrine of the composition of the crime. Lomonosov Law Journal, 4, pp. 7–25 (in Russ.).
5. Krylova, N.E. (2017). Material, formal and truncated elements of crimes. Lomonosov Law Journal, 6, pp. 15–28 (in Russ.).
6. Kudryavtsev, V.N. (1972). General theory of crime qualification. Moscow (in Russ.).
7. Kuznetsova, N.F. (2007). Problems of crime qualification: Lectures on the special course “Fundamentals of crime qualification”. Moscow (in Russ.).
8. Lifshits, V. (1947). On the issue of eventual intent. The Soviet State and Law, 7, pp. 41–47 (in Russ.).
9. Nikiforov, B.S. (2010). The object of a crime under Soviet criminal law. Moscow (in Russ.).
10. Nikiforov, B.S. (2010) The subjective side in “formal” crimes. Moscow (in Russ.).
11. Poznyshev, S.V. (1912). The basic principles of the science of criminal law: The general part of criminal law. Moscow (in Russ.).
12. Rarog, A.I. (1987). Guilt in Soviet criminal law. Saratov (in Russ.).
13. Stankevich, V.B. (1915). To the doctrine of forms of guilt (Eventual intent). Journal of the Ministry of Justice, 5, Petrograd. (in Russ.).
14. Tagantsev, N.S. (1994). Russian criminal law. Lectures. In 2 vols. Vol. 1. Moscow (in Russ.).
15. Trainin, A.N. (2004). The general doctrine of the composition of the crime. St. Petersburg (in Russ.).
16. Trainin, A.N. (1924). Etudes on criminal law: Guilt and guiltiness. Law and Life. Book 1. Moscow (in Russ.).
17. Utevsky, B.S. (1950). Guilt in Soviet criminal law. Moscow (in Russ.).
18. Feldstein, G.S. (1903). Psychological foundations and legal construction of forms of guilt in criminal law of the Decree of Moiseev and Roman law. Moscow (in Russ.).
19. Cheltsov-Bebutov, M.A. (1947). Controversial issues of the doctrine of crime. Socialist legality, 4, Moscow (in Russ.).
20. Yani, P.S. (2023). Problems of qualification of intentional infliction of serious harm to health. Legality. 2, 3, 4. (in Russ.).
21. Stooss, C. (1894) Schweizerisches Strafgesetzbuch. Vorentwurf mit Motiven im Auftrage des schweizerischen Bundesrates. Basel, Genf (in Germ.).