In criminal law, reasonable risk as an institution has appeared relatively recently. It was not fixed in pre-revolutionary legislation.
In the 20s. The twentieth century arose the need to apply reasonable risk in criminal law. Both in the legislation, and in practice this concept began to be used rather widely. Gradually, risk began to be regarded as a social and legal category.
Institute value
The need to consolidate the concept of reasonable risk in the criminal law system was undeniable. The fact is that neither the legislation itself, nor its individual institutions can appear on their own. They always act as the results of certain social actions.
New needs and interests of the company, not provided by law, should receive regulatory regulation. The absence of legal provisions on the basis of which a court or other authorized body could solve the problem of applying a separate rule in a specific legal relationship entails gaps. They must be eliminated.
The introduction of the institute of justified risk in criminal law is associated with the development of science and technology, the emergence of new manufacturing operations, technologies, and the implementation of various scientific experiments. The negative consequences of all these phenomena should have received a proper legal assessment. It was necessary to understand whether they are the product of deliberate decisions or the negligent attitude of subjects to the process of organizing and implementing certain events. Based on the legal assessment, in turn, we can draw conclusions about the validity of holding individuals accountable.
Interpretation of the concept
Despite the fact that at present the justified risk in criminal law is officially fixed, the lawyers do not have a single opinion on its definition. Let's consider some approaches to the interpretation.
Professor A. I. Rarog believes that justified risk is damage to the interests of the state, person, society by the entity acting to achieve socially useful goals. At the same time, the scientist draws attention to the fact that the observance of generally accepted precautionary measures by the person is the criterion of reasonable risk. Rarog also says that the scope of activities associated with risk is changing significantly due to the constant complication of the professional activities of the population.
Professors Krasikov and Ignatov do not seek to accurately identify signs of reasonable risk. In their reasoning, they refer to the provisions of Article 41 of the Criminal Code and judicial practice. At the same time, scientists point out that earlier the criminal legal assessment of damage at reasonable risk was carried out as part of criminal arrogance.
Current legislation
Long disputes between scientists ended in 1996 with the adoption of a new edition of the Criminal Code. Taking into account the results of a comparative analysis of the relevant provisions of the legislation of a number of foreign countries, the theoretical foundations of civil law, sociology and psychology, the specialists created a special legal framework regulating the legitimacy of reasonable risk. It is enshrined in article 41 of the Criminal Code.
According to part 1 of this norm, damage to protected interests will not be considered a crime if it was aimed at achieving socially useful goals. Part 2 of the article indicates under what conditions the risk is recognized as justified.This is permissible if the declared socially useful goal could not be achieved by actions / omissions not associated with risk. At the same time, the subject who committed the damage has taken all necessary and sufficient measures to prevent harm to interests protected by criminal law.
In the 3rd part of Art. 41 of the Criminal Code of the Russian Federation it was established that the risk cannot be considered justified if the actions / omissions of the person were obviously fraught with a threat to the life of a large number of people, the environment or could cause a public disaster.
Institute Features
The legal nature of justified risk as a circumstance excluding the criminality of an act is considered in the analysis of factors affecting the action of the subject. Legal publications provide different classifications. One of them, very controversial, was proposed by I.I. Slutsky. He identified three groups of circumstances:
1. Vividly expressing public utility and legitimacy of behavior. These include: extreme need, execution of an order, necessary defense, detention of a criminal, and other professional or official duties.
2. Excluding the danger and punishability of an act, but at the same time not making it useful. Here we are talking about voluntary refusal, the consent of the victim, the insignificance of the violation.
3. Force majeure and physical coercion.
As you can see, in no one group there was no place for reasonable risk. Based on the logic of the given classification, it is recognized as an admissible act. At the same time, public utility is minimized by causing damage without achieving the stated goals.
According to V. N. Kudryavtsev, reasonable risk should be included in the classification of different models of actions / inactions of a person. According to the author, it should be considered as the legitimate behavior of the subject, consisting in the implementation of guaranteed rights. A similar approach is followed by Yu. V. Baulin and A. A. Chistyakov. Moreover, the latter draws attention to the fact that damage to protected interests does not bear a socially useful character.
If we talk about the modern world, then not every action that society approves is lawful behavior from a legal and moral point of view.
Distinctive features
Justified risk as a circumstance excluding the crime of an act differs:
· Social orientation;
· Objective necessity;
· Alternative;
· Forced;
· The uncertainty of achieving the stated goals and causing damage when making a decision;
· Admissibility;
· Preparedness;
· Harmfulness;
· Legality.
All the above signs can be divided into those related to the decision-making stage and the stage of the commission of the act.
Summarizing the above, the following definition can be formulated: the objectively necessary, permissible, prepared action / inaction of the subject, aimed at the realization of socially useful goals, committed in a situation of uncertainty in the presence of an alternative choice of behavior model, which, despite the measures taken, caused harm to interests protected by the criminal law.
Legal Terms
Different researchers differently determine the circumstances in which the risk can be considered reasonable. The main ones, however, are reflected in article 41 of the Criminal Code. The conditions under which the risk is deemed reasonable are:
1. The focus of action / inaction on the implementation of socially useful goals.
2. The impossibility of solving the task without risk.
3. The obligation of the entity that caused the harm to take the necessary and sufficient measures to prevent it.
4. The commission of an act to the extent permitted by law.
The legal literature provides another condition.The action / inaction of a person must correspond to the modern level of scientific and technological progress.
Risk composition
In the framework of the criminal law theory, when analyzing a particular phenomenon, its object is first considered, then the subject, and then its key features are highlighted.
The objective aspect of reasonable risk is:
· An act or omission involving damage;
· Measures aimed at preventing harm;
· Negative consequences arising from the commission of the act;
· The relationship between all elements.
Optional signs are considered the conditions (situation) in which the subject, method, place and time of the act.
The subjective aspect is characterized by:
· The attitude of the person to his behavior in specific circumstances and consequences;
· Motive and purpose of the act.
Classification
The types of reasonable risk in criminal law are distinguished according to:
1. From the absence / availability of a prepared solution.
2. Opportunities to choose an alternative model of behavior.
3. The nature of the decision to commit a dangerous action / inaction. On this basis, corrective and individual risk is distinguished.
4. Interests of the person in the implementation of the goal.
5. Qualitative and quantitative indicators requiring assessment and forecasting.
6. The degree of consistency of behavior with outsiders.
7. The number of persons participating in the event.
8. The size and nature of the damage.
9. The duration of the period between the commission of the act and the onset of consequences.
10. Type of activity.
Of course, other criteria may be used.
Justified Risk Situations: Examples
Depending on the presence / absence of a prepared solution, a planned and situational risk is identified.
In the first case, the decision-making mechanism for a specific action will be fully implemented:
· The goal is set, which is recognized as essential and socially useful;
· The situation is evaluated;
· A behavior model is selected;
· Information on the expected consequences is analyzed.
Examples of planned risk are experiments in law enforcement (operational search in particular), medical activities.
Situational risk is also called sudden. It takes place in conditions when the subject is limited in time and can not always make a decision. For example, when detaining a dangerous criminal, police officers used weapons.
Ability to select actions
On this basis, an alternative and non-alternative substantiated risk is distinguished.
The first involves preparing the action and committing it in conditions when the choice is made on the basis of the forecast of consequences and chances of success.
An uncontested risk occurs in cases where the imperfection of a dangerous action will unambiguously lead to loss of life, environmental, industrial or other disaster.
Interest of the person in achieving the goal
Based on this feature, justified risk can be divided into indirect and unmediated. The first takes place in the presence of interest of the subject in the implementation of the task and the achievement of the declared socially useful goal. An example is a developer testing a new machine design.
With unmediated risk, interest, respectively, is absent. For example, law enforcement officers performing a duty in an emergency, a doctor performing surgical intervention in an emergency do not have it.
Quantity and quality of circumstances
According to these criteria, risk is divided into complex and simple. Differentiation is carried out depending on the situation in which the subject makes a risky decision. Specific conditions predisposing for the commission of a particular action / inaction are subject to assessment. In addition, probable changes in the situation are forecasted.
The amount of information available to the subject is evaluated, their suitability for making the right decision.
Consent with third parties
Reasonable risk may arise from an independent decision of a person. In such cases, the person assumes responsibility for the possible consequences.
In many situations, however, it becomes necessary to coordinate actions with those interested in the result. Especially often this happens in medicine. For example, a woman had Siamese twins, which had to be separated, since one of them had a disease that threatened the death of both. Before the intervention, a prognosis of the operation is made. Possible options may be:
1. Both children will die.
2. One of the twins will die.
3. Both will survive.
Relatives are notified of these options, who, having considered, agree or refuse to intervene.
Other varieties of risk
Depending on the subject to whom the harm is being done, actions can be directed to the address of an individual, legal entity, society, state.
By the size of the damage, a large-scale and insignificant risk is distinguished.
Hazardous actions can entail one or more consequences. In the first case, if the permissible limits are exceeded, liability will come under one specific article of the Criminal Code. If there are several consequences, respectively, the punishment is charged under several criminal norms.
Risk and need
As mentioned above, the legislation provides several grounds for recognizing the actions of the subject as unlawful. At first glance, there is a similarity between extreme necessity and reasonable risk. The actions of the subject in both the first and second cases have certain legal grounds and are recognized as socially useful. In addition, the norms fixed the limit of the behavior of the subject. If it is exceeded, liability comes at risk, and in case of emergency. The circumstances in which a person is forced to perform certain actions may be different, of course. It is not always possible to quickly assess the situation and make an informed decision.
What is the difference between justified risk and emergency? Consider the main features.
When absolutely necessary, damage caused by the actions of the subject is inevitable. It, in fact, is applied to prevent danger. With reasonable risk, this harm is only assumed, that is, there is a likelihood of its occurrence.
In case of emergency, a person inflicts damage, in character and size, less than that which may occur if nothing is done. With reasonable risk, the likely harm is far from always preventable.
Exceeding the limits of necessity may result in criminal punishment only in the event of intentional damage. If at risk there will be at least one of the conditions under which it is deemed reasonable, a person may be held liable for harm by negligence.
Conclusion
Due to the fact that the institute of justified risk has been introduced relatively recently both in the theory of law and in practice, it is often difficult to qualify certain acts. In the 41st article of the Criminal Code, the basic conditions for the legitimacy of the actions of the subject are given. Their observance is guaranteed to exclude criminal liability for damage.
When considering cases involving reasonable risk, the courts must correctly assess the circumstances in which it arose. It is important to separate it from other institutions that exclude crime and punishment. In this case, it should always be established whether the permissible limits were not exceeded, whether the subject had intent on causing damage. To clarify such circumstances, it is likely that expert assistance may be required. Specialists can help determine if the goals stated by the person were socially useful.Of considerable importance is the size of the damage caused. Based on the totality of the information received, the court should already make a specific decision in relation to a particular person.