Comparative legal analysis of the institution of complicity in crime in China and Russia
The institution of complicity in crime as a whole is one of the most problematic areas for criminal law doctrine and law enforcement practice. The problem of complicity in crime, which acts as one of the fundamental institutions of criminal law in different countries, is given increased attention in the legal science of China and Russia, which is primarily explained by the important importance of this institution.
In Chinese criminal law, only five articles of the General Part are devoted to the issues of complicity in a crime (Articles 25-29 of the Criminal Code of the People's Republic of China). In addition, in many articles of the Special Part of the Criminal Code of the People's Republic of China, incitement, aiding and abetting, as well as preparation, creation, leadership, participation in any criminal group form a completed crime. These are such elements of the crime as: incitement to split the state (part 2 of Article 103), incitement to overthrow state power (part 2 of Article 105), incitement to carry out terrorist activities (art. 120), providing financial assistance to terrorist activities (art. 120.1), providing assistance to information and network criminal activities (art. 287.2), preparatory actions for terrorist activities (art. 120.2), organization, leadership, participation in a terrorist organization (art. 120), organization, leadership and active participation in mafia organizations (art. 294), etc.
In the current Criminal Code of the Russian Federation, seven articles of the General Part (Articles 32-36, Articles 63, 67 of the Criminal Code) are devoted to the institution of complicity. In addition, group commission of a crime is considered as a qualified or specially qualified type of specific crimes (for example, Articles 105, 117, 158, 164 of the Criminal Code of the Russian Federation) or forms a constitutive feature of individual crimes (for example, Articles 208, 209, 210 of the Criminal Code of the Russian Federation, which provide for criminal liability for the very creation of a formation, gang or community or participation in them).
The article examines Chinese and Russian criminal legislation in terms of the regulatory regulation of the institution of complicity in crime, considerable attention is paid to the analysis of the criminal legislation of China and Russia in the field of legal regulation of the concept, form of complicity, types of accomplices and principles of bringing them to criminal responsibility. In the course of the research, the author also attempts to analyze some controversial issues related to the institution of complicity in a crime, such as complicity in a reckless crime, indirect execution, and the legal nature of complicity in a crime.
Keywords: complicity in a crime; forms of complicity; types of accomplices; criminal liability and punishment for complicity in a crime; controversial issues.
Introduction
A crime that is recognized as one of the complex social phenomena can be committed by an individual or several persons. The problem of complicity is one of the key issues in Chinese and Russian criminal law. The need to reform criminal law regulations against the background of political, cultural, social and economic changes taking place in recent years is beyond doubt in both China and Russia. This means not only the introduction of new norms into the current Criminal Code establishing criminal liability, criminalization and decriminalization of certain acts, improvement of some existing crimes, but also in-depth study and improvement of a number of criminal law institutions that are important in the field of criminal law in China and Russia, such as the institute of complicity in a crime.
The concept and signs of complicity in a crime
Article 25 of the Criminal Code of the People's Republic of China defines complicity as the joint intentional participation of two or more persons in the commission of a crime. At the same time, Part 2 of this article provides for "reckless co-occurrence" when "two or more persons who jointly committed a crime through negligence are not considered as accomplices to the crime. Upon the onset of criminal liability, they are punished differentially in accordance with the crime committed." It is noted that under current Chinese criminal law, complicity is possible only in an intentional crime.
It should be noted that the regulation of Article 25 of the current Chinese Code on the concept of complicity in a crime fully continues the norm of Article 22 of the Criminal Code of the People's Republic of China in 1979. During the development of amendments to the Criminal Code of the People's Republic of China, disputes arose in the science of criminal law and judicial practice in China about the regulation of Part 2 of this article: some authorities noted that in judicial practice, the trial of some cases of joint commission of a crime by negligence (for example, negligence, major incident, etc.) is more difficult than resolving a criminal case of joint the commission of intentional crimes. The regulation of criminal liability in the case of joint commission of a crime by negligence does not correspond to reality, since in real criminal cases of joint commission of a crime by negligence it is impossible to accurately differentiate the acts of all persons, as well as determine their criminal liability and impose punishment on them. With regard to the joint commission of a crime of negligence, when imposing punishment, it should be borne in mind that each of them plays a role in the joint commission of a crime. Therefore, it was proposed to change this part in this way: "Two or more persons who jointly committed a crime by negligence are not considered as accomplices to the crime. They should be punished separately, taking into account the nature of the role each of them plays in causing dangerous consequences." <3> This proposal was not accepted by the legislator. In addition, in some drafts of the Criminal Code, the norm of part 2 of this Article was abolished, such as the Draft of the General Part of the Criminal Code of June 24, 1996, the Draft of the General Part of the Criminal Code of August 8 and 31, 1996. <4>
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<3> See: Abstracts of the research report (October 12, 1989) submitted by the Group for the Development of Amendments to the Criminal Code of the Supreme People's Prosecutor's Office // Review of documents on criminal law in the new PRC. Vol. 2 / Ed. Gao Mingxuan, Zhao Bingzhi. Publishing House of the Chinese People's University of Public Security, 1998. p. 2527.
<4> Gao Mingxuan. The origin, formation and development, improvement of criminal law in the People's Republic of China. Peking University Press, 2011. p. 205.
Based on the definition of complicity in a crime established in Article 25 of the Criminal Code of the People's Republic of China, objective and subjective signs of complicity should be distinguished. Objective signs include: the participation of each individual accomplice in the commission of a crime; their joint criminal actions, each of which plays a certain role for the onset of dangerous consequences; their interaction with each other, as well as the relationship, i.e. the presence of a causal relationship between the joint act of all participants and the overall criminal result. The number of subjective signs should include the joint intent of the accomplices, i.e. each of them knows that he is not alone, but together with other persons commits a certain crime, especially since any of the accomplices has a deliberate attitude to the general criminal result. It is in the combination of previous intentional signs that an organic unity has developed from the criminal activity committed by accomplices, which is recognized as complicity in a crime characterized by increased public danger. The joint commission of a crime by negligence by two or more persons is not recognized as complicity in a crime, since in such cases there is only an objective connection, but there is no joint criminal intent.
Article 32 of the Criminal Code defines complicity as the intentional joint participation of two or more persons in the commission of an intentional crime. Russian scientists, based on this legislative definition, distinguish objective and subjective signs of complicity. Objective signs include the participation of two or more persons in the commission of a crime, and the commission of joint criminal actions by accomplices. According to the general opinion of a circle of representatives of the science of Russian criminal law, "the participation of two or more persons" in the commission of one crime means that each of these persons must be the subject of the crime, i.e. an individual who has reached the age of criminal responsibility at the time of the commission of the crime, sane at the time of its commission; "the commission of joint criminal actions by accomplices" it implies the achievement of a joint criminal result by the combined efforts of accomplices. The specified attribute means: 1) the unification of the efforts of these persons and the division of functions between them in the process of committing a common crime; 2) the presence of a common criminal result for all accomplices; 3) the presence of a causal relationship between the actions of each of the accomplices and the common criminal result <5>.
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<5> See: Commentary on the Criminal Code of the Russian Federation for prosecutors (article by article). 2nd ed., ispr., additional and revised. / Ed. cand. Jurid. Sciences V.V. Malinovsky; Scientific ed. prof. A.I. Chuchaev. M.: Contract, 2015. pp. 96-97.
The form of complicity in the criminal law of China and Russia
There is no concept of a form of complicity in the current criminal legislation of China and Russia, therefore, the questions of what forms of complicity are, as well as what is the criterion for their classification, are among the most controversial in the theory of Chinese and Russian criminal law.
In scientific research in China and Russia, complicity in crime is classified according to different criteria in different aspects, which is mainly manifested in the following.
1. Arbitrary complicity and necessary complicity. Arbitrary complicity in a crime presupposes those elements of a crime provided for in a Special Part, the subjects of which can be either a single individual or two or more persons. The vast majority of the crimes provided for in the Special Part of the Criminal Code of the People's Republic of China and the Russian Federation belong to this category, for example, murder, robbery, robbery, etc. Those elements of the crime provided for in the Special Part, the subjects of which are only two or more persons, are recognized as necessary complicity. It mainly includes such crimes as crimes of gathering people (for example, Articles 290, 291, 292, 371 of the Criminal Code of the People's Republic of China; Article 212 of the Criminal Code of the Russian Federation) and group crimes (for example, Articles 120, 294 and others of the Criminal Code of the People's Republic of China; Articles 209, 210, 282.1 and others of the Criminal Code of the Russian Federation).
2. Simple complicity and complex complicity. Simple complicity is characterized by the fact that each participant in the crime is directly involved in the commission of the crime, being its perpetrator, i.e. performs an act defined in a specific norm of the Special part of the Criminal Code (we are talking about the objective side of the crime). In this case, there is co-execution, since the actions of both accomplices are mutually conditioned and aimed directly at achieving a single criminal result. It should be borne in mind that the actions of the co-executors occur simultaneously and are directly dependent on each other. Complex complicity is characterized by the fact that not all accomplices are directly involved in actions that form the objective side of the crime, but only in one way or another contribute to its commission. In complex complicity, unlike simple complicity, there is a division of functions between the accomplices. This classification of complicity in a crime exists in the theory of criminal law in both China and Russia.
3. General complicity and special complicity. Common complicity is an intentional joint crime without an organizational structure, including complicity in a crime with or without prior conspiracy, as well as simple complicity or complex complicity; and special complicity is complicity in a crime with an organizational structure, for example, a criminal group (criminal community) provided for in Part 2 of Article 26 of the Criminal Code of the People's Republic of China, an organized group and a criminal community (criminal organization), provided for in Parts 3.4 of Article 35 of the Criminal Code of the Russian Federation.
Types of accomplices and punishment for their actions under the criminal laws of China and Russia
The classification of accomplices and the principles of sentencing for their acts are established in Articles 26-29 of the Criminal Code of the People's Republic of China. Depending on the division of roles and the degree and nature of the actions of each person jointly involved in the commission of a crime, the main accomplice, secondary accomplice <6>, forced accomplice and instigator are distinguished.
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<6> It should be emphasized here that some Russian and Chinese scientists have translated the concepts of "main accomplice", "minor accomplice" contained in the Criminal Code of the People's Republic of China as "main criminal" and "accomplice", respectively (see: Akhmetshin H.M., Akhmetshin N.H., Petukhov A.A. Modern criminal legislation of the People's Republic of China Moscow: Muravey, 2000. p. 261; Criminal Code of the People's Republic of China / Ed. and with a preface: prof. A.I. Korobeev; Trans. from kit.: prof. Huang Daoxu. St. Petersburg: Law Center, 2014. p. 69-70), which does not fully correspond to the scope and content of these Chinese legal concepts, since, firstly, "criminal" is a general concept in criminal law, only the concept of "accomplice" specifically implies a person in the field of complicity in a crime; secondly, the concept of "minor accomplice" under the Criminal Code The PRC includes not only the concept of "accomplice", but also the concept of "perpetrator" (the latter plays a secondary role in the commission of a specific crime).
Article 26 of the Criminal Code of the People's Republic of China contains only four parts of the rules on the main accomplices and the principles of punishment for their actions. Thus, Part 1 reads: "The main accomplice is a person organizing a criminal group, as well as leading a criminal group to carry out criminal acts, or a person playing a major role in a joint crime"; Part 2 provides: "A criminal group is a relatively stable criminal organization created by three or more persons for the joint commission of a crime"; ch. 3 establishes: "The leader in the organization and leadership of a criminal group is punished for all crimes committed by the criminal group"; Part 4 reads: "The main accomplice, except for the cases provided for in part three of this article, is criminally responsible for all crimes in which he participated or organized, directed."
In accordance with Part 1 of Article 27 of the Criminal Code of the People's Republic of China, "secondary accomplices are persons who perform secondary or auxiliary roles in group crimes"; part 2 of this article provides: "Minor accomplices are given a more lenient punishment, punishment below the lowest limit, or they are released from punishment."
According to Article 28 of the Criminal Code of the People's Republic of China of 1997, "persons involved in criminal activity through coercion, deception, should, taking into account the circumstances of their crime, impose punishment below the lowest limit or release them from punishment in comparison with minor accomplices."
As for incitement and the principles of punishment for it, Part 1 of Article 29 of the Criminal Code of the People's Republic of China reads: "Inciting others to commit a crime should be punished in accordance with the role he played in the joint crime. Inciting persons under the age of 18 to commit a crime must be punished more severely"; Part 2 of this article regulates: "If the incited person has not committed the crime to which he was incited, then the instigator can be given a more lenient punishment or punishment below the lowest limit."
Article 33 of the Criminal Code of the Russian Federation provides for such types of accomplices as the perpetrator, organizer, instigator and accomplice, thereby all persons who intentionally participated in the commission of an intentional crime are recognized as accomplices (Part 1 of Article 33 of the Criminal Code).
A perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code of the Russian Federation (Part 2 of Article 33 of the Criminal Code of the Russian Federation). Consequently, according to the Criminal Code of the Russian Federation, the perpetrator of the crime is the one who commits the acts provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation in the form of a specific crime (the objective side of the crime). In addition, in accordance with Part 4 of Article 34 of the Criminal Code of the Russian Federation, a person who is not the subject of a crime specifically specified in the relevant article of the Special Part of the Criminal Code of the Russian Federation, who participated in the commission of a crime provided for in this article, is criminally responsible for this crime as its organizer, instigator or accomplice.
According to Part 3 of Article 33 of the Criminal Code of the Russian Federation, the organizer is the person who organized the commission of a crime or directed its execution, as well as the person who created or directed an organized group or criminal community (criminal organization). In this case, the organizer of a crime is the organizer of specific crimes or the organizer of a criminal group. In the case of the creation of an organized group or criminal community or their leadership, the organizer is the mastermind, initiator of the commission of a crime, unites efforts and directs the activities of other accomplices to achieve a criminal result, so that the actions of the organizers of crimes committed by an organized group and a criminal community are subject to qualification under the relevant articles of the Special Part of the Criminal Code of the Russian Federation without reference to the article of the General Part of the Criminal Code The Russian Federation. In this sense, such an organizer under the Criminal Code of the Russian Federation can be considered as the leader in the organization and leadership of a criminal group under Part 3 of Article 26 of the Criminal Code of the People's Republic of China, who is criminally liable for all crimes in which he participated or organized, directed.
The instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means (Part 4 of Article 33 of the Criminal Code of the Russian Federation), i.e. at the same time the instigator incites another person to commit a crime, arouses in him the desire and determination to commit it. In addition, in some cases, such actions themselves may contain signs of a particular crime provided for by a Special part of the Criminal Code of the Russian Federation. Thus, actions aimed at arousing the desire and desire of minors to participate in the commission of crimes form an independent crime - involving minors in the commission of a crime (Article 150 of the Criminal Code of the Russian Federation). In the Criminal Code of the People's Republic of China, such crimes also exist, for example, a call for violent opposition to the enforcement of laws provided for in Article 278 of the Criminal Code of the People's Republic of China.
According to the Criminal Code of the Russian Federation, the actions of the instigator are qualified under the relevant article of the Special Part providing for the crime to which he incited the perpetrator, with reference to Part 4 of Article 33 of the Criminal Code of the Russian Federation. If a person who, due to circumstances beyond his control, failed to persuade other persons to commit a crime, then he is brought to criminal responsibility for preparing for this crime (Part 5 of Article 34 of the Criminal Code of the Russian Federation).
In accordance with Part 5 of Article 33 of the Criminal Code of the Russian Federation, an accomplice is a person who assisted in the commission of a crime with advice, instructions, providing information, means or instruments of committing a crime or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as a person, who promised in advance to purchase or sell such items. So, unlike the instigator, the accomplice of a crime does not incite, but strengthens the determination of another person, regardless of the accomplice, to commit a crime. The acts of an accomplice are subject to qualification under the article of the Special Part of the Criminal Code of the Russian Federation providing for the committed crime, with reference to Part 5 of Article 33 of the Criminal Code of the Russian Federation.
Comparative research
A comparative analysis of the criminal law norms of the institute of complicity in crime under the Criminal Code of the People's Republic of China and the Criminal Code of the Russian Federation allows us to draw the following conclusions.
Firstly, according to the Criminal Code of the People's Republic of China and the Criminal Code of the Russian Federation, only sane persons who have reached the age from which criminal liability for a certain crime begins according to the law, i.e. committing a socially dangerous act through the use of insane persons or persons who have not reached the age of criminal responsibility, does not form complicity. In addition, the Criminal Code of the Russian Federation explicitly provides for the concept of a mediocre performer, i.e. "the performer is recognized... a person who has committed a crime by using other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by this Code" (Part 2 of Article 33 of the Criminal Code of the Russian Federation). The Criminal Code of the People's Republic of China does not provide for the category of "mediocre performer", in judicial practice, only the person who used the "unfit" subject of the crime is brought to justice as a sole criminal.
Secondly, the Criminal Code of the People's Republic of China explicitly provides that the joint commission of a crime by negligence by two or more persons is not recognized as complicity in a crime (Part 2 of Article 25 of the Criminal Code of the People's Republic of China), i.e. complicity in a careless crime is impossible. There is no such direct indication in the Criminal Code of the Russian Federation regarding joint careless infliction, which causes Russian scientists to discuss the legal nature of this "joint careless infliction" <7>.
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<7> See, for example: Grinberg M.S. The concept and types of complicity in a reckless crime // Bulletin of the Omsk University. Series: Law. 2008. N 2. P. 122; Tyazhkova I.M. Careless crimes using sources of increased danger. St. Petersburg, 2002. pp. 57-58; Nersesyan V. Criminal liability of co-causers of harm due to negligence // The Russian justice system. 1999. N 10. P. 23; Telnov P.F. Responsibility for complicity in a crime. M., 1974; Ivanov N.G. The concept and forms of complicity in Soviet criminal law. The ontological aspect. Saratov, 1991.
Thirdly, both the Criminal Code of the People's Republic of China and the Criminal Code of the Russian Federation generally recognize the need for a causal relationship between the acts of accomplices and the committed crime, its consequences, i.e. an act that is not causally related to the committed crime cannot be recognized as complicity.
Fourth, in accordance with the Criminal Code of the People's Republic of China and the Criminal Code of the Russian Federation, the subjective side of complicity presupposes not only the presence of intentional guilt of all accomplices regarding the committed crime, but also mutual awareness of the accomplices about the direction of their joint actions to achieve a common criminal result, therefore, a committed crime with a unilateral subjective connection is not recognized as complicity.
Fifth, in terms of the classification of the types of accomplices, the following should be noted. In the Criminal Code of the Russian Federation, according to a single criterion, i.e. based on the functional role of each of the accomplices in the joint commission of a crime, the perpetrator (co-executor), organizer, accomplice and instigator are singled out (parts 2-5 of Article 33 of the Criminal Code of the Russian Federation). In addition, part 1 of art. 33 of the Criminal Code of the Russian Federation explicitly provides for a monistic system of complicity in a crime: "Along with the perpetrator, the organizer, the instigator and the accomplice are recognized as accomplices of the crime," which differs from the dualistic system of participation that distinguishes performance and complicity (incitement and aiding), which is enshrined in the criminal law of Germany, Japan, Austria, Denmark, etc. <8> In The Criminal Code of the People's Republic of China applies a double criterion in terms of the classification of types of accomplices: a) according to the nature and degree of actual participation of each of the accomplices, the main accomplice is distinguished (art. 26 of the Criminal Code of the People's Republic of China), a minor accomplice (Article 27 of the Criminal Code of the People's Republic of China), a forced accomplice (Article 28 of the Criminal Code of the People's Republic of China); b) according to the division of roles of participation, criminal liability for incitement is provided separately (Article 29 of the Criminal Code of the People's Republic of China). Despite the fact that the Criminal Code of the People's Republic of China, unlike the Criminal Code of the Russian Federation, explicitly states that the current Criminal Code of the People's Republic of China applies a monistic system of complicity in a crime, most Chinese scientists argue that a uniform (monistic) system of complicity has been adopted in Chinese criminal legislation <9>.
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<8> Liu Mingxiang. The Chinese system of complicity in crime as a monistic system // Bulletin of St. Petersburg State University. Law. Vol. 9. Issue 4. p. 584.
<9> Liu Mingxiang. Decree. op. c. 590.
Sixth, the Criminal Code of the Russian Federation provides for an open list of methods of incitement, such as persuasion, bribery, threat and other methods (Part 4 of Article 33 of the Criminal Code of the Russian Federation), which is absent in the Criminal Code of the People's Republic of China. In addition, in relation to failed incitement, the Criminal Code of the Russian Federation provides for preparation for a crime, i.e. if the guilty person, due to circumstances beyond his control, failed to persuade other persons to commit a crime, he is criminally responsible for preparing for a crime (Part 5 of Article 34 of the Criminal Code). According to the Criminal Code of the People's Republic of China, mitigation of punishment is directly established in relation to failed incitement, i.e. the instigator can be given a more lenient punishment or a punishment below the lowest limit (Part 2 of Article 29 of the Criminal Code of the People's Republic of China), it is not supposed to be considered as preparation for a crime.
Seventh, regarding criminal liability for involving minors in the commission of a crime, a special instruction has been made in the General Part of the Criminal Code of the People's Republic of China: "Inciting persons under the age of 18 to commit a crime must be punished more severely" (the second half of Part 1 of Article 29 of the Criminal Code of the People's Republic of China). The Criminal Code of the Russian Federation in a special part provides for such an action as a separate specific corpus delicti - involving a minor in committing a crime by promises, deception, threats or otherwise committed by a person who has reached the age of 18 (art. 150 OF the Criminal Code of the Russian Federation).
Eighth, a separate article of the Criminal Code of the Russian Federation provides for the excess of the perpetrator of the crime: "The excess of the perpetrator is recognized as the commission by the perpetrator of a crime that is not covered by the intent of other accomplices. Other accomplices of the crime are not criminally liable for the excess of the perpetrator" (Article 36 of the Criminal Code of the Russian Federation). It can be said that Article 36 of the Criminal Code of the Russian Federation successfully expresses the essence of the theory of personal responsibility of accomplices. The Criminal Code of the People's Republic of China does not regulate the excesses of the perpetrator, which is why there is an ongoing discussion among Chinese theorists about the problem of criminal liability for the excesses of the perpetrator of the crime.
Ninth, the Russian legislator, paying attention to the increased public danger of complicity, provides for stricter liability for a group crime, i.e. the commission of a crime as part of a group of persons, a group of persons by prior agreement, an organized group or a criminal community (criminal organization) is an aggravating circumstance in accordance with paragraph "c" h. 1 Article 63 of the Criminal Code of the Russian Federation; in some elements of a crime, their commission by two or more persons, a group of persons, a group of persons by prior agreement, an organized group is a qualifying or specially qualified sign, entailing a more severe punishment than the commission of a crime forming the main composition (for example, paragraphs "a", "g", part 2 of Articles 105, Article 117, 158, 164 OF THE Criminal Code OF THE Russian Federation). The Criminal Code of the People's Republic of China does not have a special rule on aggravation of punishment for complicity in a crime.
Tenth, both in the Criminal Code of the People's Republic of China and in the Criminal Code of the Russian Federation, the commission of certain acts with a group character forms a constitutive feature of individual crimes. For example, persons who created or led an organized group or criminal community, in cases provided for in Articles 208, 209, 210 and 282.1 of the Criminal Code of the Russian Federation, are criminally liable for the very fact of creating or leading such groups, as well as for all crimes committed by the group that were covered by the intent of these persons <10>. Accordingly, the Criminal Code of the People's Republic of China also contains such elements of crime as organization, leadership, participation in a terrorist organization (Article 120 of the Criminal Code of the People's Republic of China), organization, leadership and active participation in mafia organizations (Article 294 of the Criminal Code of the People's Republic of China), etc. In addition, in many articles of the Special Part of the Criminal Code of the People's Republic of China, incitement, aiding, and also, the preparation for any activity constitutes a completed crime. These are such crimes as incitement to split the state (Part 2 of Article 103 of the Criminal Code of the People's Republic of China), incitement to overthrow state power (Part 2 of Article 105 of the Criminal Code of the People's Republic of China), incitement to carry out terrorist activities (Article 120 of the Criminal Code of the People's Republic of China), financial assistance to terrorist activities (Article 120.1 of the Criminal Code of the People's Republic of China), assistance to information and network criminal activities (Article 287.2 of the Criminal Code of the People's Republic of China), preparatory actions for terrorist activities (Article 120.2 of the Criminal Code of the People's Republic of China). There are also similar types of crimes in the Criminal Code of the Russian Federation: involving a minor in committing antisocial acts (Article 151 of the Criminal Code of the Russian Federation), facilitating terrorist activities (art. 205.1 of the Criminal Code of the Russian Federation), public calls to carry out terrorist activities (Article 205.2 of the Criminal Code of the Russian Federation), planning, preparing, unleashing or waging an aggressive war (Article 353 of the Criminal Code of the Russian Federation).
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<10> See: Commentary on the Criminal Code of the Russian Federation for prosecutors. p. 118.
Some controversial issues related to complicity in a crime under the criminal law of China and Russia
1. Complicity in a reckless crime. As we already know, Part 2 of Article 25 of the Criminal Code of the People's Republic of China directly denies the existence of complicity in a reckless crime: "Two or more persons who jointly committed a crime by negligence are not considered as accomplices to the crime. Upon the onset of criminal liability, they are punished differentially in accordance with the crime committed." As for the Criminal Code of the Russian Federation, based on the concept of complicity set out in art. 32 of the Criminal Code of the Russian Federation, it can be concluded that the current criminal legislation of Russia also does not recognize "reckless joint infliction" as complicity in a crime, despite the fact that there is no clear prescription for this in the current Criminal Code of the Russian Federation.
It should be emphasized here that according to Part 2 of Article 5 of the Supreme People's Court's Explanation of some issues related to the specific application of the law in criminal cases of road accidents <11>, "the head of the corporation, the owner, the contractor of the vehicle or the passenger who, after a road accident, directs the violator-driver to escape as a result of which the victim dies due to lack of assistance, they are considered as accomplices in a traffic crime." Since, in accordance with current Chinese criminal law, a traffic crime is a typical crime of negligence, and this judicial interpretation <12> characterizes the above-mentioned action as complicity in this crime, it is obvious that this judicial interpretation contradicts the provisions of the current Criminal Code of China on complicity in a crime, so this naturally causes an active a discussion in the Chinese scientific community.
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<11>
<12> In China, judicial interpretation has legal force.
Accordingly, the above-mentioned situation has also not remained aloof from Russian criminal law. Thus, in accordance with the Federal Law of 02/03/2014, Article 263.1 "Violation of requirements in the field of transport security" of the Criminal Code of the Russian Federation is set out in a new version (entered into force on 06/05/2014) <13>, and Part 3 states that responsibility is established for acts provided for in parts 1 and 2 of this Article committed by a group of persons by prior agreement or caused the death of a person by negligence; part 4 - for acts provided for in Part 1 and 2 of this article, committed by an organized group or caused the death of two or more persons by negligence. It seems that the crime provided for in Article 263.1 of the Criminal Code of the Russian Federation, by virtue of the direct indication in the disposition of the norm for the onset of consequences due to negligence, is recognized as committed with a careless form of guilt. However, the legislator includes as qualifying and especially qualifying signs the commission of a crime in complicity. Of course, the regulation of art. 263.1 The Criminal Code of the Russian Federation has again sparked an active discussion about complicity in intentional and reckless crimes, which has been going on for quite a long time among theorists of Russian criminal law.
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<13>
2. Indirect performance. In the criminal legislation of some countries, a differentiated system has been adopted with regard to complicity in a crime (for example, in the Criminal Code of Germany): all persons playing a role in the commission of the same crime, depending on the type of their participation, are divided into perpetrators and accomplices, thus, under German criminal law, the indirect perpetrator is the one who commits a criminal offense a punishable act by means of another, i.e. commits an intentional composition of an unlawful act provided for by law with the help of another person, who acts as a kind of "instrument of crime" in his hands <14>.
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<14> Wessels J., Boylke V. Criminal law of Germany: Textbook. 35th ed., with an addendum. and ed. / Translated from German by Ya.M. Ploshkina; Edited by L.V. Mayorova. Krasnoyarsk: RUMTS YUU, 2006. p. 204.
In China, indirect execution is only a category that is widely discussed among criminal law theorists, since there is no norm on a mediocre performer in the Criminal Code of the People's Republic of China.
In comparison with the Criminal Code of the People's Republic of China, the Russian Criminal Code explicitly provides for the concept of a mediocre performer, i.e. "the performer is recognized... also, a person who has committed a crime by using other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code" (Part 2 of Article 33 of the Criminal Code of the Russian Federation). However, the location of the norm on mediocre infliction in the structure of the institution of complicity in crime has been criticized by Russian criminologists since the adoption of the current criminal law to the present day. In this regard, some Russian scientists are concerned that "...the performer is thought of only as part of the accomplices... it is just as impossible to be a performer alone as it is to be an accomplice or instigator alone" <15>, proposals were made to preserve the concept of "mediocre performer" in the Criminal Code of the Russian Federation by changing Part 2 of art. 33 of the Criminal Code of the Russian Federation, as well as on the consolidation of the category of "mediocre causer" by supplementing the General part of the Criminal Code with Article 36.1 "Mediocre infliction", located in Chapter 7.1 "Special types of infliction" <16>.
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<15> Trainin A.N. The doctrine of complicity. M., 1941. P. 104.
<16> Yanina I.Yu. On the legality of regulating mediocre infliction within the framework of Chapter 7 "Complicity in a crime" of the Criminal Code of the Russian Federation // Actual problems of Russian law. 2016. N 6. P. 165.
3. The legal nature of complicity in a crime. As we know, in different countries, the qualification of the acts of accomplices to a crime is carried out on the basis of normative and doctrinal rules of qualification, which are based on elements of two different theories - the accessory theory of complicity and the theory of independent (personal) responsibility of accomplices. Some prescriptions of the current Russian criminal legislation show that the criminal legal assessment of criminal acts committed by the organizer, instigator and accomplice largely depends on the qualification of the actions (inaction) of the perpetrator (co-perpetrators) of the crime, which manifests the accessory nature of complicity in the crime (for example, Parts 3, 4 of Article 34 of the Criminal Code of the Russian Federation). At the same time, this dependence is not absolute, since many postulates of the theory of personal responsibility of accomplices are reflected in the Criminal Code of the Russian Federation (for example, parts 1, 5 of Articles 34, 36 of the Criminal Code of the Russian Federation) <17>. In other words, the legal nature of complicity in a crime in Russian criminal law is characterized from the standpoint of both the accessory theory of complicity and the theory of independent (personal) responsibility of accomplices.
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<17> See: Obrazhiev K.V. Theories of complicity in crime and their consideration in the qualification of the acts of accomplices // Criminal policy and culture of combating crime: Materials of the International Scientific and practical Conference. 2016. pp. 80-88.
The provisions of the Criminal Code of the People's Republic of China on complicity in a crime do not contain the concepts of "perpetrator", "accomplice", but only depending on the division of roles and the degree and nature of the actions of each person jointly involved in the commission of a crime, the main accomplice, secondary accomplice, forced accomplice and instigator are distinguished. As for the punishment of accomplices, Chinese criminal law provides for different penalties in severity according to the nature of the role that each of them actually played in the commission of the crime, and not at all according to the type of accomplices. For example, according to Part 1 of art. 29 of the Criminal Code of the People's Republic of China "inciting others to a crime must be punished in accordance with the role he played in a joint crime", accordingly, in judicial practice there is often a case when the instigator is punished as the main accomplice, and the incited person (perpetrator) as a secondary accomplice, in other words, the perpetrator is not at the central location relative to other accomplices. Consequently, the legal nature of complicity in a crime in Chinese criminal law is mainly characterized from the standpoint of the theory of independent (personal) responsibility of accomplices.
Conclusion
In conclusion, it should be noted that in addition to the controversial issues related to complicity in a crime mentioned in the article, there are other controversial issues related to this criminal law institution and requiring in-depth study, such as joint infliction with a unilateral subjective connection, criminal liability of other accomplices in the case of an excess of the perpetrator, responsibility for failed complicity in a crime as well as other joint criminal activity without signs of complicity established by the current national Criminal Code. According to the author, each of the controversial issues needs particularly intensive research, the results of which should be reflected in individual articles or monographs.
