Corporate governance in the structure of corporate relations. Theoretical aspects of legal support of the Russian model of corporate governance

A person who commits a crime of little or medium gravity for the first time may be exempted from criminal liability if it has reconciled with the victim and made amends for the harm caused to the victim (Article 76 of the Criminal Code).

Mandatory terms of exemption from criminal liability in this case are:

• 1) commission of a crime for the first time;
• 2) commission of a crime of minor or medium gravity.

The basis the reconciliation of the guilty with the victim is advocated,

predetermined by making amends for the harm caused as an obligatory component of this basis.

These conditions are similar to those concerning active repentance. Let's take a closer look at the base. Of course, it is more correct to talk about the reconciliation of the victim with the culprit, since the decisive word in this process remains with the injured party.

When exempting from criminal liability on this basis, one should take into account the specific circumstances of the criminal case, including the specifics and number of objects of criminal encroachment, their priority, the presence of a freely expressed will of the victim, the change in the degree of public danger of the person after making amends and reconciliation with the victim, the personality of the perpetrator, circumstances , mitigating and aggravating punishment.

A victim is a natural person who has suffered physical, property, moral harm, as well as entity in the event of a crime causing damage to his property and business reputation... The decision to recognize the victim is formalized by a resolution of the inquiry officer, investigator or court (part 1 of article 42 of the Code of Criminal Procedure of the Russian Federation). However, in a number of cases, the actual victim and the person who was recognized as such during the preliminary investigation do not coincide. So, in case of violation of the rules road traffic, entailing the death of the victim by negligence (part 3 of Art.264 of the Criminal Code), procedurally the victim is usually recognized close relative(part 8 of article 42 of the Code of Criminal Procedure of the Russian Federation).

In fact, reconciliation is an agreement between the guilty party and the victim, which creates the basis for the termination of criminal prosecution. This is the official pardon of the person who committed the crime, regardless of the motives of the injured party, which can be very diverse (apology from the guilty party; receiving material compensation in a larger amount than the harm caused; pity, compassion for the guilty party, etc.).

The termination of criminal prosecution is possible only after the perpetrator has made amends for the harm caused to the victim. The nature and extent of such harm is established in the course of a preliminary investigation on the basis of objective data, including the results of expert examinations. However, the victim may proceed from his own, subjective assessments of the amount of damage suffered. So, the destruction of a thing that is of little value in monetary terms, but especially expensive and significant for the victim (reward, gift, etc.) may entail compensation that is much greater than its real value. This does not contradict the law, since the Criminal Code does not establish requirements for the proportionality of damage and its compensation. In any case, the final word in determining the amount of compensation remains with the injured party.

Both material damage and moral damage can be compensated in any form: monetary, in kind, oral or written (by making a public apology, publishing refutations in the media, etc.). During the preliminary investigation, documentary and other evidence of the fact of compensation for damage must be presented. Methods for redressing harm must be legal and must not infringe on the rights of third parties.

To protect the rights and legitimate interests of victims who are minors, their legal representatives are involved in mandatory participation in a criminal case, having the same procedural rights as the victim (parts 2, 3 of article 45 of the Code of Criminal Procedure of the Russian Federation). If the opinion of the minor victim on the issue of reconciliation does not coincide with the opinion of his legal representative, there are no grounds for terminating the criminal case in connection with the reconciliation of the parties.

Note that the design of many corpus delicti precludes the presence of a victim in them. So, in case of non-payment of taxes and (or) fees, damage is caused to the budgetary system of the Russian Federation, i.e. the state as a special subject of legal relations. The Criminal Procedure Code of the Russian Federation does not provide for the possibility of recognizing the state as a victim. However, in such cases, exemption from criminal liability is possible subject to the conditions set forth in Art. 76 1 of the Criminal Code. Note to Art. 198 "Evasion of taxes and (or) fees from natural person»The Criminal Code provides for exemption from criminal liability in the event that a person has fully paid the amount of arrears and corresponding penalties, as well as the amount of a fine in the amount determined in accordance with the Tax Code of the Russian Federation.

Exemption from criminal liability on the basis of Art. 76 of the Criminal Code, as already noted, is the right of the judiciary. However, in cases of private prosecution (cases of crimes under Part 1 of Art. 115, Part 1 of Art. 116, Part 1 of Art. 128 of the Criminal Code), reconciliation of the victim with the accused is mandatory for the court and it is possible before he is removed to the deliberation room. ...

In the event that a crime is committed by several persons, only those of them who have reconciled with the victim and made amends for the harm caused to him can be exempted from criminal liability.

If several victims have suffered as a result of the crime, then the lack of reconciliation with at least one of them prevents the person from being released from criminal liability on the basis of Art. 76 of the Criminal Code.

When deciding on the termination of a criminal case on the basis of Art. 76 of the Criminal Code, the court must take into account the presence of other, in addition to the fact of reconciliation, circumstances that are significant for the resolution of this issue.

Thus, the Judicial Collegium for Criminal Cases of the Krasnodar Regional Court canceled the decision of the Armavir City Court of December 12, 2006 to satisfy the petition of the defendant R. and the victim S. to terminate the criminal case in connection with reconciliation with the victim. It follows from the materials of the case that R., by his deliberate actions, violated the rights of S., protected by law, as well as the state, which resulted in undermining the authority of the law enforcement agencies. The court of first instance did not give due assessment to the fact that in relation to the second object the harm was not determined, not compensated and not redressed.

It is interesting that a diametrically opposite decision was taken by the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation in the case of K., which, when announcing the verdict, showed contempt of the court, expressed in insulting judge P. (Article 297 of the Criminal Code). Subsequently, K. was released from criminal liability, since the victim judge K. stated that she had reconciled with the guilty party and the harm caused to her had been repaired. The main direct object of the crime under Art. 297 of the Criminal Code, is the normal activity of the court in the administration of justice, and there is no evidence that the perpetrator made amends for the harm caused to the main direct object 1. However, this did not affect the decision of the highest court, in connection with which the court's order to terminate the criminal case was upheld. Thus, in two similar cases, the courts made completely different decisions.

So, active repentance and reconciliation with the victim are completely similar in terms of the conditions (clips are used for the first time committing crimes of small or medium gravity), but differ in terms of the grounds for exemption from criminal liability. In addition, reconciliation with the victim is provided for only by Art. 76 of the Criminal Code, and in connection with active repentance - also certain articles of the Special Part of the Criminal Code.

The cases under Art. 76 of the Criminal Code, are an act of goodwill of the injured person, and are expressed in an agreement of reconciliation, if the perpetrator makes amends for the harm caused to the victim. Article 75 of the Criminal Code presents a wider range of active actions of the perpetrator to level the consequences of the crime; the initiative in this case comes from the guilty person himself. Compensation for harm and making amends for the damage caused, although they are among the grounds for exemption from criminal liability in connection with active repentance, are not decisive. The court must state that, owing to active repentance, the person ceased to be socially dangerous, which is not required in case of reconciliation with the victim. Moreover, according to Art. 28 of the Code of Criminal Procedure of the Russian Federation, the consent of the victim to release the perpetrator in connection with active repentance is not required, the final decision is made by the judicial authorities.

• Bulletin of the Krasnodar Regional Court for 2007 //.
• See the Cassation ruling of the Supreme Court of the Russian Federation of February 26, 2013 No. 19-013-8sp.

A person who has committed a crime of little gravity for the first time may be exempted from criminal liability if he has reconciled with the victim and made amends for the harm caused to the victim (Article 76 of the Criminal Code of the Russian Federation).

In the absence of a complaint in the case, the court finds out in the court session from the victim whether he wants to bring the defendant to criminal responsibility. In the case of the victim's statement that he does not want this, as well as in the case when there is a complaint in the case, but the victim declares reconciliation with the defendant, the court, by its ruling (decision), terminates the case by proceeding on the basis of paragraphs. 6, 7 h. 1 tbsp. 5 of the Code of Criminal Procedure of the RSFSR. At the same time, within the meaning of the law, the participation of a prosecutor supporting the prosecution in such a case is not an obstacle to the termination of the case for reconciliation of the victim with the defendant (except for the cases provided for by part 3 of article 27 of the RSFSR Code of Criminal Procedure).

It should be borne in mind that in accordance with Part 2 of Art. 27 of the Code of Criminal Procedure of the RSFSR cases of crimes under Part 1 of Art. 117 and part 2 of Art. 141 of the Criminal Code of the RSFSR, are not subject to termination for the reconciliation of the victim with the defendant.

Thus, a completely new basis for the release of a guilty person from criminal liability has been introduced into Russian criminal legislation, which is not known to any of the earlier existing Criminal Codes.

According to the current criminal law, reconciliation with the victim is considered as one of the independent types of exemption from criminal liability. The transfer by the legislator, at the discretion of the victim, not of assessing the degree of public danger of the crime committed, but of resolving the issue of ways out of the conflict that has arisen, testifies to the respectful attitude of the legislator to the interests of the victim and corresponds to the goal of restoring social justice - the highest task of the intervention of criminal law. If the victim believes that justice will be restored in the event that the perpetrator apologizes to him, returns the stolen thing, restores the damaged property, etc., the legislator should not insist on the mandatory initiation of a criminal case.

Its fundamental novelty lies in the fact that there has been a certain weakening of the principles of the publicity of domestic criminal legislation that have remained unshakable until now and imparting to it the features of private law. This means that the application of the criminal law depends not only purely on the discretion of the law enforcement agencies, but also directly on the expression of the will of the person whose interests were violated as a result of the crime, that is, on the discretion of the victim.

Considering that reconciliation helps to eliminate the conflict that has arisen, to normalize the situation, and helps to prevent offenses and crimes, the courts should take measures to achieve this goal. When accepting a complaint, the judge is obliged to explain to the victim his right to reconciliation with the person whom he asks to bring to justice, and to take measures for reconciliation when summoning them for a joint conversation.

If the reconciliation has taken place, the judge issues a decision to refuse to initiate a criminal case on these grounds.

• 1. The perpetrator committed the crime for the first time.
• 2. The crime is classified as a minor or moderate crime.
• 3. Reconciliation of the guilty person with the victim took place.
• 4. The guilty person made amends for the harm caused to the victim.

The decisive factor in the adoption by the court and law enforcement agencies of the decision to release the person who committed the crime from criminal liability in this case is the actual reconciliation of this person with the victim, which should be specifically reflected in the materials of the criminal case. Thus, the victim may agree to release the guilty person from criminal liability or even insist on the termination of the criminal case due to his lack of claims against the guilty person.

As another indispensable condition for exemption from criminal liability by virtue of reconciliation with the victim in Art. 76 of the Criminal Code indicates that the guilty is making amends for the harm caused. Actually, in itself, the atonement of the guilty harm in this case plays a decisive role in his reconciliation with the victim. However, within the meaning of the law, the case file must also state that the person who committed the crime in one way or another completely made amends for the material or moral harm caused to the victim (reimbursed the cost of the damaged property, paid for the course of treatment for the harm caused to health, paid a sum of money in the form of compensation for lost profits or for harm caused to the reputation of the victim).

The amount of material compensation for the moral damage inflicted on the victim must be established by him independently, and the fact of compensation for the perpetrators must be specifically reflected in the case file. This will eliminate the subsequent unreasonable demands of the victim about the need to pay him additional sums of money.

If we again apply the literal method of interpreting the criminal law, then in order to terminate on the basis specified in Art. 76 of the Criminal Code of the Russian Federation, it is necessary to simultaneously have two mandatory conditions:

• 1. Reconciliation of the victim with the person released from criminal liability.
• 2. Making amends for the harm caused to the victim by the guilty party.

Moral harm can be eliminated in two ways. Firstly, by means of actions of the person who committed the crime aimed at reconciliation with the victim. If there is a reconciliation between the guilty person and the victim, the redress of harm is absorbed by reconciliation. Secondly, moral harm can be eliminated by compensating it in material (most often monetary) form, which gives rise to civil law relations between the parties associated with the corresponding obligation. Such obligations are assumed by the one who causes the harm.

Physical harm, as a rule, cannot be redressed at all in a non-property form. Reduction of physical harm usually occurs in the form of compensation to the victim for the costs of treatment, health restoration, etc., which again allows us to judge whether there is civil law relations related to the circumstance of compensation for harm caused to health (Articles 1084 and 1085 of the Civil Code of the Russian Federation).

Ultimately, the redress of both physical and moral, and, of course, property damage as a condition for exemption from criminal liability under Art. 76 of the Criminal Code of the Russian Federation is reduced to the fulfillment by a person of obligations as a result of harm (delicate obligations) regulated by Chapter 59 of the Civil Code of the Russian Federation. This rule of reconciliation with the victim and making amends for the harm caused is quite universal. A person who has made amends for the harm and reconciled with the victim thereby can avoid punishment, including real imprisonment, but, as you know, many crimes are committed through negligence, thereby giving the criminal the opportunity to atone for the harm caused.