What happens for desertion. Circumstances of the desertion

The object of the crime is the established procedure for performing military service and fulfilling the obligation to perform military service.

The objective side of the crime consists in unauthorized abandonment of a military unit or place of service in order to evade military service, as well as failure to appear for the same purpose in service.

The crime is recognized as completed from the moment of leaving the unit or place of service or failure to appear for service in order to evade military service, the duration of the illegal stay of the guilty person outside the unit or place of service does not affect the qualification of the crime, but is taken into account when imposing punishment.

As a continuing crime, desertion continues until the moment the perpetrator voluntarily appears before the authorities or is detained. A confession can be viewed as a mitigating circumstance.

The subjective side of desertion is characterized by direct intent. An obligatory sign of the subjective side of this crime is the presence of the purpose of evading military service, i.e. completely evade its passage.

The subject of the crime is a special one - a soldier.

Responsibility for committing a crime under Art. 338 of the Criminal Code of the Russian Federation, can be carried by servicemen doing military service by conscription or voluntarily (by contract), as well as citizens who are in reserve during their military training.

The qualified corpus delicti is the commission of desertion with a weapon entrusted in the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group (part 2 of Art. 338 of the Criminal Code of the Russian Federation).

A weapon entrusted in service (part 2 of article 338 of the Criminal Code of the Russian Federation) should be understood as a weapon that a person lawfully possesses due to the duties of military service assigned to him (for example, a weapon issued for duty on guard, in a border guard detachment state border of the Russian Federation).

Desertion of a serviceman with a weapon entrusted to him in service, in the absence of signs of theft, is subject to qualification only under Part 2 of Art. 338 of the Criminal Code of the Russian Federation, and if there are signs of embezzlement - for the totality of crimes provided for by the relevant part of Art. 226 and part 2 of Art. 338 of the Criminal Code of the Russian Federation.

When qualifying for desertion committed by a group of persons by prior conspiracy or by an organized group, it is necessary to take into account the relevant provisions of Article 35 of the Criminal Code of the Russian Federation.

Desertion is considered to be committed by a group of persons by prior conspiracy if two or more persons participate in it, having previously agreed on its joint commission. If the court has not established that the persons who simultaneously committed desertion acted jointly and in accordance with an agreement reached in advance, the actions of each of them should be qualified under Part 1 of Art. 338 of the Criminal Code of the Russian Federation in the absence of other qualifying features provided for by Part 2 of Art. 338 of the Criminal Code of the Russian Federation.

A note to Art. 338 of the Criminal Code of the Russian Federation established that a serviceman who first committed desertion under Part 1 of Art. 338 of the Criminal Code of the Russian Federation, can be exempted from criminal liability if desertion was the result of a combination of difficult circumstances.

A combination of difficult circumstances should be understood as objectively existing at the time of unauthorized abandonment of a unit (place of service) unfavorable life situations of a personal, family or service nature, which were perceived by a serviceman as negative circumstances, under the influence of which he made a decision to commit a crime. These may include, in particular, such life circumstances that necessitate the immediate arrival of a soldier to the location of close relatives (the serious health condition of the father, mother or other close relatives, the funeral of these persons, etc.) or significantly complicate his stay in the unit ( at the duty station) for various reasons (for example, due to harassment of a serviceman, inability to receive medical assistance).

If difficult circumstances are eliminated or disappeared (for example, the need to care for a close relative has disappeared), and the serviceman continues to illegally stay outside the unit (place of service), for subsequent evasion of military service, he is subject to criminal liability on a general basis.

Unauthorized abandonment of a unit (place of service) due to a confluence of difficult circumstances can be committed in a state of extreme necessity (Article 39 of the Criminal Code of the Russian Federation). For example, the unauthorized abandonment of a unit (place of service) due to the use of violence against a serviceman by colleagues or commanders, when in a specific situation he did not have the opportunity to preserve his life or health in any other way. In this case, the court decides an acquittal due to the absence of corpus delicti in the act.

Intention to desertion may be evidenced by such circumstances as the acquisition or production by a person of forged identity documents or evidence that a citizen has served the statutory period of military service or has a deferral from conscription, employment, etc.

In military crimes, the subject belongs to the category of special, i.e. possessing, along with common signs - sanity and age - special. These should, first of all, include the presence of a person at the time of the commission of a crime in military service or military training.

The subject of desertion is a serviceman doing military service by conscription or contract. Persons doing military service under contract are criminally liable for unauthorized abandonment of a unit or place of service and for failure to appear at the unit or place of service; they are also subject to criminal liability for desertion. This is the accepted point of view.

The subject of desertion can be a person who is serving a sentence in a disciplinary military unit or in the form of arrest with detention in a guardhouse. A person serving a sentence of military service restriction is also prosecuted for desertion.

For committing desertion, citizens who are in reserve are also responsible during their military training, since in accordance with Article 2 of the Federal Law "On the status of military personnel" for citizens of the Russian Federation who are undergoing military training, the status of military personnel applies in the cases and procedure , which are provided for by the legislation of the Russian Federation.

The subjective side of desertion is direct intent to evade military service. A specific element of the subjective side of desertion, which serves as the only criterion for distinguishing it from the unauthorized abandonment of a unit or place of service, is the purpose of the crime. Thus, unauthorized abandonment of a unit or place of service is desertion only if there is a goal of evading military service.

Part 2 of Article 338 of the Criminal Code of the Russian Federation provides for qualifying signs of desertion. One of these signs is desertion with a weapon entrusted in the service. This weapon must be serviceable. If the weapon is stolen by the culprit, then the deed is qualified as desertion without aggravating circumstances and theft of weapons under Article 226 and Part 1 of Article 238 of the Criminal Code. If a deserter transfers, sells, stores, sends or carries weapons, ammunition, then he is responsible under Article 222 of the Criminal Code for illegal acquisition, transfer, sale, storage, transportation or carrying of weapons.

Another qualifying feature is desertion committed by a group of persons in a preliminary conspiracy or by an organized group. When analyzing desertion by a preliminary conspiracy by a group of persons, one should be guided by Part 2 of Article 35 of the Criminal Code, and in case of desertion committed by a group - Part 3 of this Article.

The weapon referred to in part 2 of article 338 of the Criminal Code must be serviceable.

The public danger of desertion with weapons, the commission of this crime by several persons, and especially those with weapons, is extremely high.

On January 1, 2013, Aleksey K. and Pyotr K. deserted from one of the military units stationed in G. They stole two Kalashnikov assault rifles and six cartridges with cartridges from the armory. The search party found them in the bazaar. Resisting the arrest, the deserters killed two civilians and wounded seven. Review of judicial practice of the Supreme Court of the Russian Federation
(approved by the Presidium of the Supreme Court of the Russian Federation on 24.12.2014).

The deed is subject to qualification under part 2 of article 338 of the Criminal Code (qualifying feature - desertion committed by a group of persons), part 3 of article 226 of the Criminal Code (qualifying feature - theft of firearms by a group of persons), clauses "a", "e "Article 105 of the Criminal Code (the qualifying feature is the murder of two persons and the commission of this crime in a generally dangerous way).

As with the unauthorized abandonment of a military unit or place of service, desertion can be combined with a violation of the rules for carrying out combat duty (Article 340 of the Criminal Code), violation of the rules of the border service (Article 341 of the Criminal Code), violation of the rules of guard duty (Article 342 of the Criminal Code), violation of rules for the maintenance of public order and ensuring public safety (Article 343 of the Criminal Code) and violation of the statutory rules for carrying out internal service (Article 344 of the Criminal Code).

In such cases, the deed is qualified under Part 1 or Part 2 of Article 338 of the Criminal Code and the corresponding article establishing responsibility for violation of the procedure for performing special types of service. With a combination of crimes, exemption from criminal liability in accordance with the footnote to Article 338 of the Criminal Code is not applicable.

Part 1 of Article 338 of the Criminal Code provides for punishment in the form of imprisonment for up to seven years, and individually, taking into account the specific circumstances of the case.

The military garrison court found B. guilty of evading military service for more than one month and convicted under part 1 of Article 338 of the Criminal Code. Having considered the case by way of supervisory review, the military court overturned the verdict against B. and dismissed the case. According to the materials of the case, B.'s mother died, in connection with which he was granted leave.

After the death of his mother, B. was dependent on his brother and sister born in 1987 and 1988, as well as his elderly grandmother.

At the same time, B. remained the only one who could take care of his relatives, which he actually did before his arrest. In view of the above B. on the basis of sub. "b" paragraph 1 of Article 24 of the Law on Military Obligation was subject to transfer to the reserve as the only person involved in caring for family members who needed outside help and were not fully supported by the state.

In such circumstances, the military court of the fleet correctly concluded that B.'s crime was committed as a result of a combination of difficult circumstances, and reasonably terminated the case on the basis of the footnote to this article. Review of judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2012 "(approved by the Presidium of the Supreme Court of the Russian Federation on December 26, 2012).

Art. 338 of the Criminal Code of the Russian Federation is listed as desertion and provides for serious punishment. Despite the fact that the article concerns a soldier, the guilty person will serve his sentence not in a disciplinary military unit, but in an ordinary prison.

The new version of the article for desertion provides for sanctions for the following acts:

• leaving the place of service or military unit;
• Failure to appear at the duty station after dismissal, vacation or weekend.

The listed acts committed by one person are punishable by imprisonment for a maximum of 7 years.

If these offenses were committed with a weapon, by a group of persons by prior agreement or by an organized group, then the term of punishment is increased to 10 years.

The legislator gives the concept of desertion as the unauthorized abandonment of a military unit. The glossary gives an expanded definition of this concept: the battlefield is added to the enumeration. So, if a soldier escaped during the hostilities, then he will be convicted not by a military court, but by a criminal one.

This rule was revised in 2011: the amendments affected the term of serving the sentence for offenses of part 2. After conducting a scientific analysis, lawyers came to the conclusion that, according to the number of offenses committed by military personnel, in particular, deserted, three years is too lenient punishment. Therefore, the sanctions were tightened.

Among the crimes committed during military service, desertion is considered dangerous. This offense negatively affects the military unit from which the soldier deserted. The more often such a crime is committed, the less authority the army enjoys.

The legislator left a note to the article: if a serviceman deserted for the first time, then he can avoid criminal liability due to difficult circumstances that prompted him to escape or fail to appear. In this note, the legislator shows that he understands the soldier and takes his place.

The subject of the crime is military service and the order of its passage. Violating Art. 338 of the Criminal Code of the Russian Federation, the soldier violates the duties regulated by the Constitution, specifically Art. 59. This rule states that a citizen is obliged to defend his Motherland and Fatherland.

The subject of the offense is special here: not every citizen is suitable as a subject. The offender is:

1. A person drafted into the army.
2. A citizen who has signed a contract with the state.

Considering these factors, the subject of the offense is a person who has reached the age of 18 years.

An offense is considered committed when a soldier did not arrive at the place of service or left without the permission of a senior in rank. If the offender himself returned to the unit and admitted that he left the unit without permission, he still cannot avoid punitive measures. In this case, a confession will only mitigate the punishment, but will not completely remove it. But if at the time of the offense the soldier had good reasons to leave the unit or difficult circumstances that forced him to do this, then by a court decision he is not charged with a sanction. Such reasons include the death of a loved one and other circumstances equated to this reason.

The message about the impending misconduct is not encouraging, but, from the point of view of the execution of civic duty, deserves praise.

Criminal liability for committed desertion occurs after the offender returned to the military unit after voluntarily leaving it. The offense has a statute of limitations - it expires when the person who committed the offense leaves the draft age. If a soldier serves under a contract, then in his case the statute of limitations is three years.

Escape, coupled with theft of weapons, qualifies as a set of offenses and is punished accordingly. The offense specified in the norm is regarded as a serious crime.

Precedents under Art. 338 of the Criminal Code of the Russian Federation consider the specified norm as an independent crime or in aggregate. In 2016, the Judicial Collegium for Military Affairs considered the case of a major who committed a murder and deserted.

On the basis of the cumulative offenses, the major was charged with:

• 11 years in a general regime colony;
• a fine of 10 thousand rubles;
• deprivation of rank.

These sanctions were applied in accordance with the court's verdict. After which the major was deprived of his rank, job and freedom.

The defendant filed an appeal, but the higher court, having briefly familiarized itself with the corpus delicti, dismissed the complaint.

Another example - the case was considered by a military collegium in 2011, in Moscow. The offender exercised his right to a jury trial. For the committed desertion, the soldier was sentenced to 4 years in prison in a general regime colony. The citizen wanted to completely evade military service, so he hid in different settlements.

Quite often, leaving the service or avoiding it is accompanied by the murder and robbery of innocent people. As a result, the penalty increases, although with the correct work of the defender, it could have been avoided. There are many such examples in judicial practice.

Topic: Responsibility for desertion

Introduction

Chapter 1. Crimes against military service

1 Legal characteristics of crimes against military service

1.2 Liability for crimes against military service

Chapter 2. Features of desertion as a crime against military service

1 Objective signs of desertion

2 Subjective signs of desertion

3 Criminal liability for desertion

Conclusion

List of used literature

Introduction

Military service is a special type of public service intended for the armed defense of the Fatherland from military aggression.

The Armed Forces of Kyrgyzstan are not an isolated social mechanism, but an organic and integral part of our society.

In conditions of sharply aggravated social contradictions, constantly aggravating disintegration processes, there is a sharp decline in the prestige of service in the army, the number of offenses and crimes committed by conscripts in order to evade military service is growing, which ultimately weakens the combat readiness of military units, units, creates a threat to the country's military security, national security.

Today, the topic I have chosen is one of the most relevant, since by committing these crimes, servicemen evade the fulfillment of their duties, violate the requirements of military discipline, which ultimately leads to a weakening of the combat capability and combat readiness of the Armed Forces equipped with complex military equipment and weapons of collective use. These types of weapons require clear, timely and coordinated actions by many military personnel. Therefore, even isolated cases of unauthorized abandonment of a unit can lead to grave consequences, especially in wartime, in a combat situation, while on guard, on alert, etc.

Research objectis the concept of desertion, as evasion of the obligation of military and alternative service, the norms of the criminal legislation of the Kyrgyz Republic, establishing responsibility for desertion.

The purpose of my thesisconsists in a detailed analysis of desertion.

In accordance with this goal, the following were set in the thesis. tasks:

ü characterize the personality of a conscript who has deserted;

ü to carry out the criminal law characterization of desertion;

ü disclose criminal liability for desertion.

The normative base of the graduate studyare: the Constitution of the Kyrgyz Republic of June 27, 2010; Criminal Code of the Kyrgyz Republic of October 1, 1997, No. 69; Criminal Procedure Code of the Kyrgyz Republic dated June 30, 1999 No. 63; as well as current laws and regulations of the Kyrgyz Republic.

The theoretical basis of the researchare the works of domestic and foreign scientists in the field of general theory of law, criminal law and international law.

Work structure... Thesis consists of an introduction, two chapters, a conclusion, a list of references.

In the introductionsubstantiates the relevance of the topic, practical significance, formulates goals and objectives, object and subject, pays attention to the historical and information base.

V first chapter"Crimes against military service" reveals the content of crimes against military service, as well as criminal liability for these types of offenses.

In the second chapterdescribes in detail the legal composition of desertion as one of the types of military crimes. Criminal liability for committing this type of crime was also considered here.

In custodythe results of the research are summed up, the main theoretical conclusions, specific proposals and practical recommendations are formulated.

Chapter 1. Crimes against military service

1.1Legal characteristics of crimes against military service

In accordance with the Constitution of the Kyrgyz Republic, the defense of the Fatherland is the duty and obligation of a citizen of the Kyrgyz Republic who carries out military service in accordance with the law. Fundamental provisions in the field of organization of military service are contained in the laws of July 24, 2009 No. 242 "On Defense and Armed Forces of the Kyrgyz Republic", of February 9, 2009 No. 43 "On the universal conscription of citizens of the Kyrgyz Republic, on military and alternative services", dated July 1, 1992 N 930-XII "On the status of military personnel."

Before analyzing the various approaches to the concept of "crime against military service", it is necessary to define the concept of "military service". The law "universal conscription of citizens of the Kyrgyz Republic, on military and alternative services" legally defines military serviceas a special type of public service performed by citizens in the Armed Forces of the Kyrgyz Republic, as well as in the internal troops of the Ministry of Internal Affairs of the Kyrgyz Republic, civil defense troops, engineering and technical and road-building military formations under the executive authorities, state security bodies and special formations created for wartime.

It should be borne in mind that citizens do military service by conscription or by contract. During their military service, they acquire the status of a soldier. Male citizens of the Kyrgyz Republic between the ages of 18 and 27 are subject to conscription.

The term of military service in calendar terms is established:

· for conscripts of military service - twelve months;

· for officers doing military service on call - twenty-four months;

· for military personnel undergoing military service under a contract - the terms specified in the provisions on the procedure for performing military service.

· to soldiers, sergeants and foremen serving sentences in disciplinary units, the time of serving a sentence is not counted in the term of compulsory military service.

· For a serviceman released from a disciplinary unit, subject to his impeccable service, the time spent in a disciplinary unit may, in the prescribed manner, be counted in the term of compulsory military service.

A crime against military serviceis a crime against the established order of military service, committed by servicemen doing military service by conscription or contract in the Armed Forces, in other troops, military formations of the Kyrgyz Republic, as well as by citizens in the reserve during their military training. It is an act (action or inaction) characterized by the same signs for all crimes: social danger, criminal wrongfulness, guilt and punishability. The public danger of crimes against military service is characterized by the infliction or threat of harm to the combat capability of troops.

Their criminal unlawfulness is manifested in the commission of an act provided for by special chapter 33 of the Criminal Code, as well as special military laws and other regulations. Any crime against military service violates the order of military service. All dispositions of military criminal law are essentially blanket and require a substantive analysis of the relevant regulations (military regulations, manuals, instructions, etc.).

Article 354 of the Criminal Code of the Kyrgyz Republic provides a detailed definition of a crime against military service. It has three parts. In part 1 of Article 354 of the Criminal Code of the Kyrgyz Republic, it is determined that the acts provided for in Chapter 33 of the Criminal Code of the Kyrgyz Republic against the established procedure for military service, committed by military personnel performing military service by conscription or under a contract in the Armed Forces of the Kyrgyz Republic, other troops and military personnel are recognized as crimes against military service. formations of the Kyrgyz Republic, as well as citizens who are in reserve during their military service. Part 2 of Article 354 of the Criminal Code of the Kyrgyz Republic states that military builders of military construction detachments (units) of the Ministry of Defense of the Kyrgyz Republic and other ministries and departments of the Kyrgyz Republic bear responsibility for crimes against military service. In part 3 of Article 354 of the Criminal Code of the Kyrgyz Republic, a reference is made to the fact that criminal liability for crimes against military service committed in wartime or in a combat situation is determined by the legislation of the Kyrgyz Republic in wartime.

The considered definition of a crime against military service is based on the general concept of a crime given in Article 8 of the Criminal Code of the Kyrgyz Republic. This is the only generic definition of a crime in the Code. Its purpose is a general distinction between crimes against military service and other crimes. It reveals the essence of crimes against the order of military service and their general features, which makes it possible to establish the general distinguishing features of a military crime from a disciplinary offense. Like any legal norm, the definition is binding, the signs of a crime against military service have their own meaning, which should be adhered to when deciding the issues of responsibility of servicemen. The definition of the concept of a crime against military service fulfills an important function: it allows to reveal the essence, content of crimes attributed to military ones, and on this basis to distinguish crimes against military service from other encroachments, as well as a military crime from offenses that do not constitute a crime. The features specified in the definition are taken into account both at the level of criminalization of military offenses, when the legislator decides whether to classify a particular act as military crimes, and at the law enforcement level, when it is clear whether this act can be qualified as a crime against military service.

The public danger of crimes against military service is characterized by the infliction or threat of harm to the combat capability of the Armed Forces of the Kyrgyz Republic. Their criminal unlawfulness is manifested in the commission of an act provided for by special Chapter 33 of the Criminal Code of the Kyrgyz Republic, as well as by special military laws and other regulations. Any crime against military service violates the order of military service. All dispositions of military criminal law are essentially blanket and require a substantive analysis of the relevant regulations (military regulations, manuals, instructions, etc.).

Guilt is the mental attitude of the offender to the act and the resulting consequences; in crimes against military service, it reflects the military character of both. The perpetrator is aware or must be aware that, being the subject of a military crime, he commits an act that violates the order of military service, that he causes or creates a threat of harm to the combat readiness of troops.

Thus, a crime against military service is a crime against the established order of military service, committed by military personnel doing military service by conscription or contract in the Armed Forces, in other troops, military formations of the Kyrgyz Republic, as well as by citizens in reserve during the passage of their military training. It is an act (action or inaction) characterized by the same signs for all crimes: social danger, criminal wrongfulness, guilt and punishability.

Crimes against military service, as a rule, are directed against the established order of its passage. They can be committed by servicemen doing military service by conscription or by contract in the Armed Forces of the Kyrgyz Republic, as well as by citizens who are in reserve during their military training. It has already been established that the prosecution of military personnel is carried out on the basis of the Criminal Code of the Kyrgyz Republic. An obligatory sign of a crime against military service is an orientation against the order of its passage, established by the legislation of the Kyrgyz Republic.

As has already been established, the issue of the subject of a military crime is legally resolved in Article 354 of the Criminal Code of the Kyrgyz Republic. In part 1 of this article, it is determined that crimes against the procedure for carrying out military service are committed by military personnel doing military service by conscription or under a contract in the Armed Forces of the Kyrgyz Republic, other military formations of the Kyrgyz Republic, as well as by citizens in the reserve during their military training. In accordance with part 2 of Article 354 of the Criminal Code of the Kyrgyz Republic, military builders of military construction detachments (units) of the Ministry of Defense of the Kyrgyz Republic and other ministries and departments are also criminally liable for military crimes.

Servicemen - subjects or victims for the purposes of Chapter 33 of the Criminal Code of the Kyrgyz Republic are: officers, warrant officers, cadets of military educational institutions of vocational education, sergeants, foremen, soldiers entering military service under contract; sergeants, foremen, conscript soldiers, as well as cadets of military educational institutions of vocational education before concluding a contract with them. For military personnel serving under a contract, military service begins on the day the service contract enters into force. For some categories of military personnel, a different procedure has been established for the beginning or end of service. The end of military service is the day of exclusion of servicemen of all categories from the lists of personnel of a military unit. This is the expiration day. If the term of service of a soldier has expired and there are no exceptional circumstances listed in the law, then he cannot be held responsible for a military crime, although he is not excluded from the lists of a unit or subdivision. Special circumstances that make it possible to postpone the exclusion of a serviceman from the lists of a military unit are, for example, being in hospital, being held captive or as a hostage.

In the Armed Forces, non-military employees and workers are sometimes in special positions or jobs. They cannot be the subjects of military crimes, but they can be complicit in such crimes.

Thus, the subjects of crimes against military service are two categories of persons: military personnel and citizens who are in the reserve and undergoing military training. Both categories of subjects carry out military service in accordance with the laws and military regulations and are subject to liability for violation of the order of military service.

On the subjective side, most military crimes are committed intentionally. Some of them are committed with both direct and indirect intent, for example, the deliberate destruction or damage of military property.

The purpose and motive for the commission of a military crime are indicated in a number of articles, and in some it is necessary to identify them by analyzing the norm.

In the theory of military criminal legislation today, two approaches can be distinguished to the essence of the object of a crime against military service. In the first of them, the object is the order of military service, in the second - the military security of the state. The legal basis for the concept of the object of a crime against military service is the relevant norms of criminal legislation.

The content of the object of a crime against military service in the theory of military criminal legislation has always been established taking into account the provisions of the concept of the object of encroachment, which was considered generally accepted. The criminal law doctrine lacks the former unity of views on the object of the crime as public relations (legal relations, the rule of law). This approach was shared by almost all lawyers in the Soviet period of the development of criminal law. Today in the literature there are other positions on this issue. In particular, some scientists believe that the object of a crime is subjective rights, others - law-protected interests (goods), and still others - a person. This state of affairs in the doctrine of the object of a crime and criminal law complicates the study of special problems and makes it necessary to establish the general theoretical and legal foundations of the concept of the object of a crime against military service.

The concept of the object of a crime against military service should be based not only on the provisions on the general object of the crime, but also, without fail, include signs determined by the tasks of the military organization of the state. Approaches to defining the object of a crime against military service were closely interconnected with the functions that the military organization of the state had. However, today the military organization of the state is a very complex structurally and functionally formation. This circumstance objectively requires clarification of the concept of the object of a crime against military service from the point of view of the functional purpose of the military organization of the state.

The concept of the object of a crime against military service in its content is derived from the general concept of the object of a criminal encroachment and must necessarily include security as the main material feature. At the same time, it is necessary to reflect in it the specific properties of the object, conditioned by the tasks (functions) of the military organization of the state. The object of a crime against military service should be recognized as military security protected by criminal law from criminal encroachments, which is a state of combat readiness of the state's military organization that guarantees armed protection of the constitutional order, independence, sovereignty and territorial integrity of the Kyrgyz Republic from external and internal military threats.

The objective side of a crime against military service is characterized by an action or inaction that is dangerous for military discipline.

A number of military crimes are committed only by action, for example: unauthorized abandonment of a unit or place of service, desertion. Some military crimes are committed by inaction, for example, violation of the statutory rules of guard (watch) service due to negligence towards them, which entailed grave consequences.

Most of the corpus delicti of military crimes are of a material nature. They are completed when the consequences specified in the law occur, for example, the destruction or damage of military property, the death of a person.

Some military crimes are formal in nature. For example, desertion, unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for the same purposes in military service are completed crimes from the moment of leaving the unit or place of service or failure to appear for it. Establishing the consequences of such an act is not required.

Thus, crimes against military service are recognized as crimes against the established procedure for military service, provided for by Chapter 33 of the Criminal Code of the Kyrgyz Republic, committed by military personnel performing military service by conscription or under a contract in the Armed Forces of the Kyrgyz Republic, as well as by citizens in reserve while passing by them military training and military builders of military construction detachments of the Ministry of Defense of the Kyrgyz Republic, other ministries and departments of the Kyrgyz Republic.

2 Accountability for crimes against military service

Crimes against military service, as a rule, are directed against the established order of its passage. They can be committed by servicemen doing military service by conscription or by contract in the Armed Forces of the Kyrgyz Republic, as well as by citizens who are in reserve during their military training.

Bringing military personnel to criminal responsibility is carried out on the basis of the Criminal Code of the Kyrgyz Republic and are criminally liable for both common crimes and crimes against military service.

The following types of crimes belong to the general criminal ones: crimes against freedom, honor and dignity of the person; crimes against sexual inviolability and sexual freedom of the individual; crimes against constitutional human and civil rights and freedoms; crimes against family and minors; economic crimes; economic crimes; crimes against the interests of service in commercial and other organizations; against public safety and public order; crimes against public health and public morals; economic crimes; crimes against traffic safety and transport operation; crimes in the field of computer information; crimes against state power; crimes against the peace and security of mankind.

Criminal liability of servicemen for crimes against military service is provided for in Chapter 33 of the Criminal Code of the Kyrgyz Republic (Articles 354-372).

An obligatory sign of a crime against military service is an orientation against the order of its passage established by the laws "On Defense and Armed Forces of the Kyrgyz Republic", "On General Military Duty of Citizens of the Kyrgyz Republic, on Military and Alternative Services", "On the Status of Military Personnel", general military regulations and other regulatory legal acts of the Kyrgyz Republic.

crimes against the order of command and statutory rules of relations between military personnel;

crimes against the procedure for the conservation of military property, the handling of weapons, the rules for the operation of military equipment.

The group of crimes against the order of command and the statutory rules of relations between military personnel includes: failure to comply with an order; resistance to the superior or forcing him to violate the duties of military service; violent actions against the chief; insulting a serviceman; violation of the statutory rules of relations between servicemen in the absence of subordination relations between them.

Responsibility for failure to comply with an ordercomes under article 355 of the Criminal Code of the Kyrgyz Republic. The punishment (depending on the nature of the failure to comply with the order and the consequences that have occurred) is provided in the form of restrictions on service for up to two years or arrest for up to six months or detention in a disciplinary military unit for up to one year, or imprisonment for up to three years ...

Resistanceas a crime consists in obstructing the chief or another serviceman (patrolman, duty officer, etc.) to perform the duties of military service assigned to them. Coercion is defined as actions aimed at forcing, forcing a superior or other person to violate military service duties. Resistance or coercion, committed without aggravating circumstances, is punishable by detention in a disciplinary military unit for a term of one year or more, or imprisonment for a term of up to three years. If the crime was committed by a group of persons or with the use of a weapon, or entailed grave consequences, they are punishable by imprisonment for a term of three to seven years.

Violation of the statutory rules of relations between military personnel, associated with humiliation of honor and dignity or mockery of the victim or associated with violence, is punishable by up to six months in a disciplinary unit or imprisonment for up to one year, and under aggravating circumstances (by a group of persons, with the use of weapons, the onset of grave consequences) - up to 10 years.

Servicemen doing military service for conscription, for evading military service by unauthorized abandonment of a unit or place of service, as well as for failure to appear on time without good reason for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical institutions with a duration of two to ten days, are punished by detention in a disciplinary military unit for up to six months or imprisonment for a term of up to two years.

For desertion (article 360 ​​of the Criminal Code of the Kyrgyz Republic), imprisonment is provided for up to five years, and in some cases up to 7 years. We will consider this type of crime more in the second chapter of the thesis.

For evading military service duties by inflicting any damage on oneself (self-harm) or by simulating illness, forgery of documents or other deception, various criminal penalties are provided, up to imprisonment for up to 7 years.

Crimes that violate the rules of carrying special services include: violation of the rules for carrying out combat duty (combat service), violation of the statutory rules of guard duty, violation of the rules for maintaining public order and ensuring public safety, violation of the statutory rules for carrying out internal service and patrolling in the garrison.

These crimes are punishable by such punishments as restrictions on service for up to two years, arrest for up to six months, confinement in a disciplinary military unit for up to two years, and imprisonment for up to five years.

Abandonment of a dying warship; destruction or damage to military property; loss of military property; violation of the rules for handling weapons and objects that pose an increased danger to others; violation of the rules of driving or operating machines; violation of flight rules or preparation for them; violation of the rules of navigation constitute a group of crimes against the procedure for saving military property, handling weapons, and the rules for operating military equipment. These crimes are punished for various periods of restriction in military service, arrest, detention in a disciplinary military unit, imprisonment, deprivation of the right to hold certain positions, or a fine.

Servicemen for committing ordinary crimes and crimes against military service are subject to criminal punishment only military courts.

The Military Court of the Kyrgyz Republic is part of the judicial system of the Kyrgyz Republic. Its activities are determined by the law “On the Supreme Court and Local Courts” dated June 13, 2003. The Criminal Procedure Code of the Kyrgyz Republic determines the jurisdiction of military courts.

In accordance with the Law, the military court system consists of garrison military courts and a military court. Since the military court is equated to the regional courts and the court of the city of Bishkek, the judges of the military court have the same rights and duties.

According to Art. 25 of the law "On the Supreme Court and Local Courts", the system of local courts consists of:

) courts of first instance (district courts, district courts in the city, city courts, inter-district courts, military courts of garrisons);

) courts of second instance (regional courts, Bishkek City Court, Military Court of the Kyrgyz Republic).

Garrison Military Court:

) considers civil, criminal, economic, administrative cases, cases of administrative offenses, as well as other cases and materials;

) revises (considers), on the basis of newly discovered circumstances, judicial acts that have entered into legal force adopted by this court;

) brings to execution the judicial acts that have entered into legal force;

) maintains office work and judicial statistics, studies and summarizes judicial practice, keeps records of the movement of cases and the timing of their consideration in court, ensures the storage of court cases and materials;

The garrison military court hears criminal cases on all crimes committed by military personnel and citizens undergoing military training, with the exception of criminal cases within the jurisdiction of a higher military court.

The Military Court of the Kyrgyz Republic acts as a court of second instance. Second instance court:

) carries out the revision of the judicial acts of the courts of first instance that have not entered into legal force on an appeal basis;

) carries out the revision of the judicial acts of the courts of first instance that have entered into legal force in cassation;

) revises, according to newly discovered circumstances, the judicial acts adopted by him in the cases provided for by the procedural laws;

) conducts office work, studies and summarizes judicial practice, keeps records of the movement of cases and the timing of their consideration in court, ensures the storage of court materials, maintains judicial statistics;

) exercise other powers in accordance with the legislation of the Kyrgyz Republic.

The military collegium acts as part of the Supreme Court of the Kyrgyz Republic and is the immediately higher judicial instance.

The jurisdiction of cases to military courts is determined by law depending on the content of the case to be considered and on the affiliation of the person accused of the crime or the circumstances in which the offense was committed, and sometimes on the complexity of the case. Thus, military courts have jurisdiction over civil and criminal cases on the protection of violated or disputed rights, freedoms and legally protected interests of military personnel, citizens undergoing military training, from actions (inaction) of military authorities, military officials and their decisions. Military courts have jurisdiction over cases of crimes of which military personnel, citizens undergoing training camps, as well as citizens dismissed from military service, citizens who have completed military training are accused, provided that the crimes were committed by them during the period of military service, military training. Military courts have jurisdiction over cases of administrative offenses committed by military personnel or citizens undergoing military training. They also have jurisdiction over cases of consideration of complaints of citizens dismissed from military service, against actions (inaction) of military authorities, military officials and decisions made by them that violated the rights, freedoms and legally protected interests of these citizens during the period of their military service or military training. ...

If a criminal case against a group of persons is within the jurisdiction of a military court against at least one of them, then this criminal case may be considered by a military court, if the person or those persons who are not military personnel or citizens undergoing military training do not object to this. If there are objections from these persons, the criminal case against them is separated into a separate proceeding and considered by the appropriate court of general jurisdiction. If it is not possible to separate a criminal case into a separate proceeding, this criminal case in relation to all persons is considered by the appropriate court of general jurisdiction.

Criminal liability is subject to the principles provided for in criminal law. The principles of criminal law and criminal liability are fixed in Article 3 of the Criminal Code of the Kyrgyz Republic.

The principle of legalitypresupposes the unswerving fulfillment of the requirements of the criminal law both by individuals and by state bodies pursuing the persecution of the person who committed the crime. There is no crime, just as there is no punishment, if they are not provided for by the criminal law. In criminal law, the use of analogy, broad or restrictive interpretation of the rule of law is prohibited.

Equality of citizens before the lawmeans that the norms of the Criminal Code apply to all citizens and officials equally, regardless of their position in society, race, religion, gender, beliefs, etc. The criminal law provides for some advantages for minors, women, the elderly, and persons who have committed a crime for the first time. This does not contradict the principle of equality, since this approach concretizes the principle of equality in relation to the unequal living conditions of various groups of the population that have developed in society.

Inevitability of responsibilitymeans the duty of a person who has committed a socially dangerous act to undergo criminal prosecution, even if ultimately he will be released from criminal liability or punishment.

The principle of personal responsibilityassumes that responsibility for the deed cannot be shifted from the guilty person to other people. The opposite would mean the so-called objective imputation of criminal responsibility, that is, responsibility without guilt. An objective condition of responsibility is a socially dangerous act, but for the recognition of a person as guilty of a crime, only subjective imputation is allowed, that is, bringing to justice the one who committed the crime and did it guilty (deliberately or inadvertently).

Fairness of criminal responsibilityis achieved by the fact that criminal law should not contain such norms that would be regarded by society as unnecessary, excessively repressive, ambiguous or difficult to apply. Punishment or other measures of criminal liability should be exactly what the specific violator deserves, and not excessively harsh or unreasonably mild, that is, necessary and sufficient to correct the offender. No one can be held criminally liable twice for the same crime.

The principle of humanismmanifests itself in the fact that the criminal law is obliged to protect a person and his rights in every possible way from criminal encroachments, to serve a person as a natural guard in difficult living conditions. On the other hand, it is not humane to punish a criminal just because he broke the law, to cause him torment, suffering, excessively and unnecessarily to worsen the conditions of his existence. Criminal liability only in the form of punishment for what has been done, without the purpose of warning, correction and education, is practically meaningless.

Important to criminal law is principle of the presumption of innocenceexisting in the judicial system. This principle is that no one can be found guilty of a crime other than by a court sentence and in accordance with the law. No one can be forced to prove their innocence, and the burden of proof lies with the law enforcement agencies. This principle complements the principle of legality and follows directly from it.

The importance of the principles of criminal law lies in the fact that they permeate legislative and law enforcement activities. If any rule of the Criminal Code, if any decision of the investigative or judicial authorities contradicts the principles of criminal law, then they should be canceled. An effective and consistent fight against crime is possible only with strict observance of the principles of criminal law.

Thus, having studied the first chapter of the thesis, we can draw the following conclusion:

· the fundamental provisions in the field of the organization of military service are contained in the laws of July 24, 2009 No. 242 "On Defense and Armed Forces of the Kyrgyz Republic", of February 9, 2009 No. 43 "On the universal conscription of citizens of the Kyrgyz Republic, on military and alternative services", dated July 1, 1992 N 930-XII "On the status of military personnel";

· military service - part of the state service for the fulfillment by citizens of universal military duty in the Armed Forces and other military formations of the Kyrgyz Republic;

· crimes against military service cover various aspects of the established procedure for its passage. They can be divided into several groups:

Crimes against the order of command and statutory rules of relations between military personnel;

evasion of military service duties;

violation of the rules for carrying special services;

crimes against the procedure for the conservation of military property, the handling of weapons, the rules for the operation of military equipment;

· war crimes fall within the jurisdiction of military courts.

· Chapter 2. Features of desertion as a crime against military service

1 Objective signs of desertion

Traditionally, desertion is understood as unauthorized abandonment of military service, less often - draft evasion. The word itself comes from the French déserteur - fugitive, traitor, and has been used as a legal term since the late Middle Ages.

In the ordinary mind, deserters are considered to be all servicemen who have left their units without permission. Soldiers flee from the ranks of the armed forces almost every day. Almost all cases of soldiers escaping from the army occur for two reasons: because of humiliation and beatings from colleagues and because of the half-starved existence that young people are forced to endure in their units.

However, in accordance with the Criminal Code, only those who illegally left their unit with the firm intention to never return to military service can be called a deserter. If in the course of the investigation the detained deserter declares that he was going to "return to duty one day, that leaving the unit was the only way for the soldier to escape from hazing," then the legal term "deserter" cannot be applied to him, he is exempt from criminal military lawyers in such situations use a broader term: unauthorized abandonment of a part.

Desertion is the most dangerous crime against the order of stay in military service, since a citizen completely evades military service.

Desertion is associated with the evasion of citizens from fulfilling their constitutional duty - to defend the Fatherland. The public danger of desertion is that it infringes not only on the order of service, but also on the constitutional foundations of the state. Desertion as a military crime is characterized by signs common to all crimes: social danger, criminal wrongfulness, guilt and punishability. At the same time, the specifics of military service fills these features with a special "military" content.

In the Criminal Code of the Kyrgyz Republic, desertion is understood as the unauthorized abandonment of a unit or place of service in order to completely evade military service.

The concept of the composition of desertion includes elements common to all crimes: object, subject, objective and subjective sides.

As is known from the theory of criminal law, the object of a crime is understood as the totality of social relations protected by criminal law.

In the theory of criminal law, it is customary to single out the general, generic and direct object of the crime.

Shared objectis a whole, some part of which is encroached on by every crime. The general object of the crime gives a holistic idea of ​​those benefits, interests, values ​​that modern society and the state consider so socially significant that they provide for criminal liability in the event of causing or the possibility of causing them significant harm.

Generic objectis an object of a group of similar crimes, part of a common object. This is one or another area, the sphere of socially significant values, interests, benefits. An idea of ​​the generic objects of crime is given by the rubrication of the Special Part of the Criminal Code by sections and chapters, since it is the generic object of the crime that forms the basis for the codification and classification of the norms of the Special Part. This primarily determines its fundamental importance. The generic objects of crime include, for example, a person, property, public safety, order of administration, interests of justice, interests and order of military service, etc. The generic object of a crime is also important for the qualification of crimes - it allows you to determine which group, sphere of homogeneous interests damage has been or may be caused as a result of the commission of a criminal act.

Immediate object- this is the object of a separate concrete crime, part of a generic object.

The immediate object is a mandatory feature of every crime. This is any specific good that is directly attacked.

Another element of the object of the crime is the object of the crime.

In our opinion, there is no need to give up the subject of the crime as an element of the object of the crime, since its allocation is of an exclusively practical nature, contributes to the correct qualification of each specific crime. The subject of a crime is a materialized element of the material world, influencing which the guilty person encroaches on the object of the crime. So, when a car is stolen, the object of the crime is the property right, the object is the car itself.

If the object of the crime is always some socially significant values, interests, benefits, then the object of the crime is always some material substance.

Unlike the object, which is a mandatory feature of any corpus delicti, the subject of a crime is an optional feature. This means that some criminal acts may not have a specific object of attack, for example, as in desertion. If the subject of the crime is directly indicated in the law or obviously implied, then for a given corpus delicti it becomes a mandatory feature. Thus, the subject of a crime is a mandatory sign of any theft (property), bribery (bribe), counterfeiting (counterfeit money or securities), smuggling (goods or other items) and many other crimes. In such cases, the subject of the crime is important for the qualification of the act: there is no subject corresponding to its characteristics specified in the law - there is no such corpus delicti.

In addition, unlike the object of a crime, which is always harmed as a result of the commission of a criminal act, the object can not only suffer damage from the crime, but can also remain unchanged, simply modify, and sometimes even improve its qualities.

Thus, the common object of desertion isAs in other military crimes, military security, protected by criminal law from criminal encroachments, is a state of combat readiness of the state's military organization that guarantees armed protection of the constitutional order, independence, sovereignty and territorial integrity of the Kyrgyz Republic from external and internal military threats.

Generic objectof this crime is defined as social relations that ensure the normal procedure for the passage of military service by military personnel, i.e. fulfillment of the constitutional obligation of a citizen of the Kyrgyz Republic to defend the Fatherland.

In this case, the territory of a military unit is understood as the location of barracks, tents, other premises where military personnel permanently or temporarily reside and serve, as well as a place of service outside the military unit, where a soldier is currently performing service duties (place of temporary work, echelon , route, train, etc.).

The objective side is the second elements of the corpus delicti. Without the objective side of the act, there can be no encroachment on the object of the crime, there is no subjective side as a certain reflection of the objective signs of the act in the mind of the subject, and, finally, there is no subject of the crime.

Considering the objective side of a crime as an external characteristic of the process of committing a crime, it should be borne in mind that it is “external” only in relation to the subjective, psychological content of the act. But this side of the crime is at the same time an internal characteristic for the very mechanism of criminal encroachment on a protected object, since it reveals its internal structure and the interaction of its constituent features.

Objective sideas an element of corpus delicti, it is a set of legally significant signs provided for by the Criminal Code of the Kyrgyz Republic, characterizing an external act of socially dangerous encroachment.

Signs of the objective side include:

1.mandatory:

a) an act encroaching on a particular object, which can be expressed in two forms: in action - it is an act of active socially dangerous and illegal behavior; inaction is a socially dangerous act of behavior, consisting in the failure by a person of the action that he should and could have performed. Criminal inaction is characterized by two elements: objective - the obligation to act and subjective - the ability to commit a behavioral act. The deed should be limited to a certain volitional impulse and conscious;

b) socially dangerous consequences - the result of a criminal act;

c) a causal relationship between action (inaction) and consequences - an objective relationship between phenomena, one of which (cause), in the presence of certain conditions, gives rise to another phenomenon (effect). Peculiarities of causal relationships: the cause gives rise to the effect. The scope of the reasons, first of all, the stage of motivation and decision-making, when it comes to the formation of a motive, a goal, the definition of the means of achieving it precisely as criminal; the cause always precedes the effect in time; the action of the same cause under the same conditions always gives rise to the same effect; the effect does not repeat the cause;

2. optional:

a) situation - a set of circumstances that affect the nature and degree of public danger of the act (combat situation, zone of ecological disaster or zone of ecological emergency);

b) the place of the crime is the territory on which the criminal act is committed (dwelling place, burial place);

c) the time of the crime - the period during which the crime was committed (wartime);

d) the method of committing a crime is a set of techniques and methods used to commit a criminal act.

Thus, objective side of the crimeIt is expressed either in action - leaving a military unit or place of service, or in inaction - failure to appear at a unit or place of service upon appointment, transfer, from a business trip, from a medical institution, from dismissal, etc.

Desertion is a continuing crime: it lasts as long as the perpetrator is out of service. The initial moment of the crime is defined as the time of unauthorized abandonment of the unit or the last day of the term of appearance for service. The moment of termination of the stay outside the territory of a military unit or other place of service is the time when the stay of the guilty person outside the service was terminated (appearance of the guilty person; return to the unit; detention by employees of law enforcement agencies or military departments, etc.).

In turn, the crime is recognized as completed not from the moment of the termination of the criminal act, but from the moment of its beginning, i.e. when the guilty person unauthorizedly left the unit or another place of service, as well as did not appear for service within the prescribed period. Here there is an existing contradiction to the law, if a crime is considered completed at its beginning, practically at the moment of leaving the military unit, then it cannot last in any way.

As a result of the existing contradiction, in practice, problems arise with the qualification of desertion, as well as with the application of certain provisions of the general part of the Criminal Code (the effect of the law in time, the limitation of criminal proceedings, etc.).

Also, if desertion is a continuing crime, therefore, it is unfinished, then the requirements of the norms of Chapter VI of the Criminal Code of the Kyrgyz Republic should apply to it - Unfinished crimes , including Article 29 of the Criminal Code - ... According to the disposition of the article, voluntary refusal is recognized - ... that a person stops preparing for a crime or stops acting ... ... "Also, if desertion is a continuing crime, therefore, it is unfinished, then the requirements of the norms of Chapter VI of the Criminal Code of the Kyrgyz Republic should apply to it - Unfinished crimes , including Article 29 of the Criminal Code - voluntary refusal to commit a crime .

Consequently, the voluntary termination by the culprit of continuing desertion by return to service should be considered a voluntary refusal.

There is another problem, for example, what are the limits of continued desertion? After reaching the age of 27, in accordance with the law of the Kyrgyz Republic "On universal conscription of citizens of the Kyrgyz Republic, on military and alternative services", citizens of the Kyrgyz Republic are exempted from military service. But they serve up to 28.5 years of military service. Consequently, desertion loses its criminal character when the perpetrator reaches this age.

Therefore, for conscripts, desertion as a continuing crime should be recognized as completed (terminated) from the point of view of not the corpus delicti, but from the point of view of the duration of the desertion process of 27 years, i.e. from the moment when the obligation to pass military service by conscription disappears.

Having studied the objective aspects of desertion, I come to the following conclusion:

· The legal corpus delicti -it is a complex of its interrelated components. It consists of the following components:

)object;

2)objective side;

)subject:

)subjective side.

· The immediate target of desertionis the established procedure for staying in military service.

· The objective side of desertionis expressed in the unauthorized abandonment of a military unit or place of service by a serviceman or in his failure to appear at the unit (for service) from vacation, business trip, or a medical institution.

· Desertion is a continuing crime with a formal composition and is considered completed from the moment the serviceman leaves the unit or leaves the place of service, or from the moment of failure to return from vacation, business trip, or medical institution within the prescribed period.

· Desertion as a continuing crime actually ceases from the moment a person ceases to have the obligation to carry out active military service. Other grounds for ending the criminal state of a deserter are his surrender or detention by the authorities.

2 Subjective signs of desertion

Subjective signs of desertion include the subject and the subjective side of the crime.

In doctrinal definition subject of crimeit is invariably emphasized that this concept, in contrast to the concept of the personality of a criminal, has not a social, but a purely criminal legal content. So, according to NS Leikina's definition, the concept of a subject of a crime means, first of all, a set of legal signs on the basis of which an individual who has committed a socially dangerous act is subject to criminal liability. Such permanent and universal signs are sanity and the achievement of a certain age by a person. In a special study devoted to the subject of a crime, V. G. Pavlov emphasizes that “the subject of a crime, possessing a set of characteristics provided for in the law (natural person, sanity, age), and being one of the elements of the corpus delicti, is most closely related to criminal liability ". In the above definition, two circumstances are stated: firstly, the criminal-legal characteristics of the subject of the crime (a combination of the three named signs), and secondly, the inextricable connection of the subject with criminal responsibility, outside and without which the subject of the crime does not exist.

Article 17 of the Criminal Code of the Kyrgyz Republic contains a provision, new to the criminal legislation of the Kyrgyz Republic, that only a sane natural person who has reached the age established by the Criminal Code is subject to criminal liability. In the above provision, its first part deserves attention ("subject to criminal liability"). It should be interpreted not literally, not in the sense that a person possessing the specified qualities should be subject to criminal liability, because these qualities alone cannot justify criminal liability, but in the sense that an individual, if he is sane and has reached the minimum the age from which responsibility for this type of crime comes, according to the law, he can be criminally liable for the act he has committed, that is, he can be the subject of this crime.

Thus, the subject of a crime can be defined as a sane natural person who has reached the minimum age from which, according to the law, comes responsibility for this type of crime, and is able to bear criminal responsibility for it.

From Article 17 of the Criminal Code of the Kyrgyz Republic and the doctrinal definition of the subject of a crime, it is clear that its legal characteristics are three features.

First of all, only individual, that is, a person. None of the previous criminal codes indicated this feature, although it was implied.

So, a person (natural person) can be the subject of a crime only on condition that he: 1) has committed an act stipulated by the Special Part of the Criminal Code; 2) has reached the age from which, according to the law, criminal liability arises for this type of crime; 3) committed this act in a state of sanity. The first of these circumstances is a condition for the onset of criminal liability, and the second and third are the legal signs of the subject of the crime. Both of them are inextricably linked with guilt as the basis of the psychological content of the crime. Both psychophysiological maturity and the state of mental health of a person are necessary prerequisites for realizing the actual nature and negative social significance of actions (inaction) performed by a person and the ability to manage them, taking into account the interests of others, society and the state.

Man's ageas a sign of the subject of a crime is most often determined by the number of years lived by a person. So, LV Borovykh understands by it the number of years lived, behind which, as she believes, lies the qualitative filling of individual periods of life, which makes it possible to give an essential definition of age as a period in the development of any person.

In his doctoral dissertation, RI Mikheev defined the concept of age in narrow and broad senses. In a narrow sense, he understood it as a calendar period of time from a person's birth to some chronological moment in his life, and in a broad sense - as a limited period of a psychophysical state in life, determined by medico-biological, socio-psychological and legal changes.

For the purposes of substantiating criminal liability, that is, as a sign of the subject of a crime, age should be understood as the number of years lived by a person from the moment of his birth until the moment of committing a criminal offense. Legislative establishment of the minimum age at which criminal responsibility should arise is a very difficult task that requires serious sociological justification. Taking into account many factors, both objective and subjective, in different countries this issue was resolved in different ways. In a number of Islamic countries, in Ireland and Switzerland, criminal liability begins from the age of seven, however, with the proviso that the form of implementation of criminal liability cannot be punishment. In England, the minimum age at which criminal liability could arise (albeit limited) was initially set at eight years, and then was raised to ten years. According to the French Criminal Code, the minimum age of criminal responsibility is thirteen years. In Bulgaria, Germany, North Korea, Norway, Romania and Japan, criminal liability occurs upon reaching the age of fourteen. The Finnish Criminal Code has established the age of criminal responsibility at fifteen years. In most CIS countries, criminal responsibility begins at the age of sixteen, and for some crimes - at the age of fourteen. Some countries have established differentiated minimum ages of criminal responsibility: as a general rule, criminal responsibility begins at the age of sixteen, and for the most serious crimes from an earlier age (in New York State, responsibility for murder begins from the age of thirteen, as well as in Uzbekistan for aggravated murder).

In the Kyrgyz Republic, the general age at which criminal responsibility occurs is set at sixteen years. The reduced age of onset of criminal responsibility is set for those listed in Part 2 of Art. 18 of the Criminal Code of the Kyrgyz Republic of crimes for the commission of which responsibility is possible upon reaching the age of fourteen years. Establishing this exception, the legislator proceeded not at all from the increased severity, but from the prevalence of these crimes and the adolescent's understanding of their socially dangerous and illegal nature. All these crimes, with the exception of disabling vehicles or means of communication, are deliberate and are violent, selfish in nature or are associated with a gross violation of generally accepted norms of behavior in society.

In recent decades, everywhere, including in Kyrgyzstan, there has been a sharp increase in the number of minors committing (mainly in groups) socially dangerous acts stipulated by the Criminal Code, for which they, due to their age, are not subject to criminal liability. This is due to the proposals of domestic scientists to reduce the age of criminal responsibility to thirteen years for murder, or to reduce the age threshold of responsibility for murder to twelve to thirteen years with a simultaneous expansion of the list of crimes in Part 2 of Art. 18 of the Criminal Code, or a more general proposal to lower the age of criminal responsibility to thirteen years, not only for murder, but also for theft, robbery (including those committed without aggravating circumstances), knowingly false reporting of an act of terrorism and some other crimes.

The next mandatory sign of the subject of a crime is his sanityat the time of the commission of a criminal offense. The presence of this feature is presumed, but this is a rebuttable presumption: if there is any information or there is a reasonable assumption about the mental illness of a person who committed a socially dangerous act, in the past or in the present, then the question of whether this person was in a state of sanity at the time of committing the incriminated act. Despite the fact that in the criminal law of almost all countries sanity is recognized as a prerequisite for bringing a person to criminal responsibility, none of the foreign criminal codes provides a definition of sanity, therefore the content of this feature has to be disclosed through its opposite - through the concept of insanity.

Insanity- this is the state of a person during the commission of a socially dangerous act, in which the person could not realize the actual nature and social danger of his actions (inaction) or control them due to a chronic mental disorder, temporary mental disorder, dementia or other morbid state of the psyche (Article 19 of the Criminal Code ).

Two criteria of insanity follow from the legislative definition. Medical (biological) criterion indicates the presence of a mental illness: a) chronic mental disorder; b) temporary mental disorder; c) dementia; d) another morbid state of mind. The legal (psychological) criterion indicates a disorder of the intellectual ("could not be aware") or volitional ("could not lead") side of the psyche.

The commission of a criminally unlawful act in a state of insanity excludes criminal liability due to the absence of corpus delicti, since one of the obligatory signs of the subject of a crime is not available. The state of insanity is established by the court on the basis of the conclusion of the forensic psychiatric examination, which is subject to assessment by the court along with and in conjunction with other evidence. A person who has committed a socially dangerous act stipulated by the criminal law in a state of insanity may be subjected to compulsory medical measures if, due to a mental disorder, the person can cause other significant harm (in addition to what has already been inflicted) or poses a danger to himself or to other persons.

When deciding on sanity or insanity, the following should be borne in mind.

First, insanity is not a permanent state of a person. Like any other disease, a mental disorder can, for various reasons, change qualitatively and quantitatively at different periods of its course. Therefore, for a criminal-legal assessment of an act committed by a mentally unhealthy person, it is necessary to establish his mental state at the time of the commission of a socially dangerous act provided for by criminal law, that is, to determine whether he could be aware of the actual nature and social danger of his actions precisely at the moment of their commission and lead them.

Secondly, the state of mental illness, depending on the nature and depth of mental damage, can limit the intellectual and volitional abilities of a person to varying degrees. A painful state of mind can be such that the patient is aware of the socially dangerous nature of some of his actions, but does not understand the social harmfulness of others. Therefore, a forensic psychiatric examination should investigate the issue not in general of the ability to realize the nature of one's actions and to direct them, but of the ability to realize the actual nature and social danger of precisely committed actions provided for by the criminal law. In other words, insanity must be established in relation to all socially dangerous acts committed by this person. The author recalls a case that took place in the investigative practice of the author, when a person was declared sane in relation to the theft of someone else's property, but insane in relation to the arson committed by him. Other combinations of socially dangerous acts are also possible, of which only some of them are reflected in the mind of a person as socially dangerous, while the danger of other acts is not recognized by the person.

It should be borne in mind that sanity does not at all mean absolute mental health. A person with any mental disabilities can also be recognized as sane, which, nevertheless, do not deprive him of the ability to realize the actual nature and social significance of the actions performed and to manage them. Taking this into account and proceeding from the legislative formulation of insanity and its signs, the following definition of sanity can be proposed: “Sanity is such a level of mental health of a person at the time of the commission of a criminal offense, which allowed him to realize the actual nature and social danger of the actions (inaction) being committed and to manage them ".

But a significant number of crimes provided for by the Special Part of the Criminal Code of the Kyrgyz Republic can only be committed by a person who is endowed, along with the mandatory, other features defined in the law, which are called optional. For example, a crime against military service can only be committed by a soldier or a citizen during military training. A subject with such optional features in the doctrine of criminal law is called a special subject or a special perpetrator of a crime. There is also a different opinion. S.S. Avetisyan does not recognize a special subject of a crime, but speaks of a subject of a crime with a special composition.

The designation of a special subject in the text of the law occurs by adding one or more optional ones to the general features. In most cases, the disposition of the criminal law contains only one optional feature, which in a special way characterizes the subject of the crime.

According to S.A. Semyonov, a special subject of a crime can also be determined through the sanction of a criminal law norm. For example, a restriction on military service can only be imposed on military personnel doing military service under a contract.

In the educational and special literature, there are a number of classifications of optional features of the subject of a crime, which give it a special character. From the point of view of some authors, these features include: a sign of citizenship, gender, age, family and kinship relations, official position, attitude to military service. According to the position of others, signs characterizing the legal status, position or profession, characterizing demographic signs, characterizing the relationship with the victim and characterizing past antisocial activities.

Thus, subject of desertionthere can be servicemen of different categories: both persons doing military service by conscription, and persons doing it under contract.

It follows from this that the optional feature of the subject of a crime is mandatory for this crime.

The subjective side of the crimerepresents the psychological side of the committed act and is expressed in a certain mental attitude of the subject of the crime to the act and its consequences, motives, goals and emotions.

The subjective side is an obligatory element of the corpus delicti. It represents a subjective basis for criminal liability along with an objective one - action or inaction, socially dangerous consequences and a causal relationship between them.

The subjective side includes a required element - guiltand optional - motive, purpose, emotions... In some cases, the legislator directly defines the elements of the subjective side in the dispositions of the criminal law norms of the Special Part, for example, as part of a murder, which is the deliberate infliction of death on another person. The value of the subjective side is determined by its importance for the qualification and differentiation of one crime from another, similar to the first in other characteristics of the composition. The content of the subjective side largely determines the nature and degree of public danger of the deed. In some cases, the analysis of the subjective side allows you to distinguish another offense from a crime. This is possible when criminal liability arises only for the willful commission of the given act. For example, if the limits of necessary defense are exceeded, liability arises only for intentional exceeding, a careless crime is not recognized.

In the Criminal Code of the Kyrgyz Republic, the fifth chapter of the Criminal Code of the Kyrgyz Republic "Wine" is devoted to the issues of guilt.

Foreseeing the inevitabilityor the possibility of the onset of socially dangerous consequences - this is a mental representation of the subject of a crime about the results of his actions or inaction. Foreseeing the inevitability of consequences means a person's conviction in the absolute reality of their occurrence. By stabbing a vital organ of the human body, the culprit is convinced of the inevitability of the death of the latter. Anticipating the possibility of the onset of socially dangerous consequences means that a person foresees the consequences not as absolutely inevitable, but only as really possible. This happens when the methods or means of committing a crime used may equally entail different consequences. Foreseeing only the possibility of socially dangerous consequences exists, for example, in the case when, in order to kill another person, the culprit puts an explosive device in his car.

Desire for the onset of socially dangerous consequences(volitional moment of direct intent) is a person's conscious striving for a specific result.

indirectlyif the person realized the social danger of his actions (inaction), foresaw the possibility of socially dangerous consequences, did not want to, but deliberately admitted these consequences or treated them indifferently (part 3 of Art. 23 of the Criminal Code). A certain similarity between indirect intent and direct intent lies in the intellectual aspect, in particular, in the person's awareness of the social danger of his actions or inaction. However, another sign of the intellectual moment of indirect intent is different: the subject of the crime does not foresee the inevitability of the onset of socially dangerous consequences. Moreover, although the consequences are really possible, the likelihood of their occurrence is lower than with direct intent.

The named types of intent differ significantly in terms of the volitional moment. If, with direct intent, a person desires the onset of socially dangerous consequences, then with an indirect one, he does not want to, knowingly allowing them or treating them indifferently, since they, as a rule, are a by-product of the actions or inaction of the guilty person striving to achieve another goal. Moreover, such consequences should not be either a means, or an intermediate goal, or an accompanying element of an act, otherwise one should speak not of an indirect intent, but of a direct one. So, for example, harm to health during a robbery is committed with direct intent, and not indirectly, although the main purpose of the perpetrator is to take possession of property. At the same time, without applying violence to the victim, the desired goal cannot be achieved. Thus, the perpetrator wants to harm the victim's health, is directly interested in this, therefore, one cannot speak of his indifference to such consequences or their deliberate admission.

Negligencerepresents an independent, along with intent, form of guilt, which can be of two types - frivolity or negligence.

The crime is presumed to have been committed by frivolityif the person foresaw the possibility of the onset of socially dangerous consequences of his actions (inaction), but without sufficient grounds for that, arrogantly counted on the prevention of these consequences (part 2 of article 24 of the Criminal Code of the Kyrgyz Republic). The intellectual moment of frivolity consists in anticipating the possibility of the onset of socially dangerous consequences. The volitional moment of frivolity lies in the fact that a person expects to prevent them, although this calculation turns out to be unfounded, arrogant. The groundlessness of the calculation may be associated with an arrogant calculation on their physical properties, on the action of mechanisms or on other circumstances.

Frivolity as a type of negligence is often confused with indirect intent, since their common features are the anticipation of the possibility of the onset of consequences and the reluctance of their occurrence. However, in contrast to indirect intent, with frivolity, one should speak of foreseeing not real, but only an abstract possibility of the onset of socially dangerous consequences. Foresight with frivolity differs from foresight with indirect intent in a lesser degree of certainty. In addition, with frivolity, a person not only does not want the consequences, but also counts on certain circumstances that can prevent their occurrence, that is, in relation to the non-occurrence of consequences with frivolity, a more active attitude, while with indirect intent they are indifferent to the subject of the crime ...

The crime is presumed to have been committed negligentlyif the person did not foresee the possibility of the onset of socially dangerous consequences of his actions (inaction), although with the necessary care and foresight he should and could have foreseen these consequences (part 3 of article 24 of the Criminal Code of the Kyrgyz Republic). The intellectual moment of negligence consists in unforeseeing the possibility of the onset of consequences, volitional - in the volitional behavior of a person and in the absence of a desire to prevent consequences due to the fact that the person acts inattentively or imprudently. It is important to note that in case of negligence, the person was obliged and had the opportunity to foresee the onset of socially dangerous consequences, otherwise liability is excluded. The obligation to foresee socially dangerous consequences may follow from the law, be determined by the employee's official status, his professional functions, technical and household rules, his relationship with other persons, including the victim. The inability to foresee the consequences with the existing obligation to do this is possible, for example, in the event of a sudden illness of the person or severe fatigue.

Motive, purpose and emotionsrefer to optional signs of the subjective side of the offense. This means that they acquire an obligatory meaning only when they are indicated in the disposition of the criminal law norm.

A motive is an incentive for a crime, "internal motives determined by certain needs and interests that cause a person to decide to commit a crime"

The purpose of the crime is the result that the person who commits the crime seeks to achieve.

Emotions are feelings and emotional experiences experienced by a person. Only a strong emotional disturbance (physiological affect) - an outburst of emotions, which reduces a person's control over his actions, but does not exclude sanity - is of criminal law importance.

Having studied the subjective side of the crime, one can characterize the subjective side of desertion.

The subjective side of desertion is characterized bydirect intent. An obligatory sign of the subjective side of this crime is the presence of the purpose of evading military service, i.e. completely evade its passage.
If a soldier has such a goal after unauthorized abandonment of the unit (duty station), the deed should be qualified only as desertion. Intention to desertion may be evidenced by such circumstances as the acquisition or production by a person of forged identity documents or evidence that a citizen has served the statutory period of military service or has a deferral from conscription, employment, etc.
The qualified corpus delicti is the commission of desertion with a weapon entrusted in the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group (part 2 of article 360 ​​of the Criminal Code of the Kyrgyz Republic).

A weapon entrusted in service should be understood as a weapon that a person lawfully possesses by virtue of the duties of military service assigned to him (for example, a weapon issued for duty on guard, in a border guard to protect the State Border of the Kyrgyz Republic).

Desertion of a serviceman with a weapon entrusted to him in service, in the absence of signs of theft, is subject to qualification only under Part 2 of Art. 360 of the Criminal Code of the Kyrgyz Republic, and if there are signs of theft - for the totality of crimes provided for by the relevant part of the Criminal Code of the Kyrgyz Republic.

When qualifying desertion committed by a group of persons by prior conspiracy or by an organized group, it is necessary to take into account the relevant provisions of the Criminal Code of the Kyrgyz Republic. Desertion is considered to be committed by a group of persons by prior conspiracy if two or more persons participate in it, having previously agreed on its joint commission. If the court has not established that the persons who simultaneously committed desertion acted jointly and in accordance with an agreement reached in advance, the actions of each of them should be qualified under Part 1 of Art. 360 of the Criminal Code of the Kyrgyz Republic in the absence of other qualifying features provided for by Part 2 of Art. 360 of the Criminal Code of the Kyrgyz Republic.
If the organizer, instigator or accomplice did not directly participate in the commission of desertion, the deed by the performer cannot be qualified as a crime committed by a group of persons in a preliminary conspiracy. In these cases, in accordance with the Criminal Code of the Kyrgyz Republic, the actions of the organizer, instigator or accomplice should be qualified with reference to the relevant part of the Criminal Code of the Kyrgyz Republic.
A note to Art. 360 of the Criminal Code of the Kyrgyz Republic established that a serviceman who for the first time committed desertion under Part 1 of this article may be exempted from criminal liability if the desertion was the result of a combination of difficult circumstances.

3 Criminal liability for desertion

Criminal liability is a form of legal liability provided for by law for the commission of a crime, which occurs for the person who committed it after a court verdict and is implemented in one form or another of punishment.

Criminal differs from other forms of legal liability in greater severity. Conviction in a criminal case always comes on behalf of the state, and the impact is made in the form of certain significant personal and property deprivations. Criminal liability entails a conviction, which remains for a person even after serving a sentence and is carried out within the framework of criminal law relations.

Criminal law relations are social relations regulated by law between the person who committed the crime and the state. This relationship arises in connection with the legal fact of the commission of a crime. From this moment, the person who committed the crime and the justice authorities representing the state have rights and obligations: the state has the right to apply coercive measures that constitute criminal responsibility to the perpetrator.

In the educational and scientific literature, the concept of criminal liability is revealed from various points of view and positions. Common to all points of view is that the problem of criminal liability is considered within the framework of criminal law relations. The state has the right to subject a person for the crime he has committed to the state-compulsory influence provided for by the criminal law norm, which he violated, and at the same time, the obligation to apply precisely this influence. A person who has committed a crime has the obligation to be subjected to such influence and the right to use exactly the influence that is provided for by the criminal law norm violated by him.

In this regard, there are several main points of view in the understanding of criminal responsibility.

) Criminal liability is understood as the obligation of a person who has committed a crime to undergo a punishment consisting of privations of a personal or property nature, blaming him for the crime. This point of view is stated in many educational and scientific works.

) Criminal liability is understood as the state-compulsory influence provided for by the criminal law, which is applied by a court verdict to the person who committed the crime - his conviction, as well as the imposition of punishment on him, entailing a conviction.

) Criminal liability is understood as the relationship between the person who committed the crime and the state represented by law enforcement agencies, regulated by criminal law, i.e. all criminal law relations in general.

So, I. Ya. Kozachenko believes that “criminal liability is a legal relationship arising from the moment a crime was committed, within which the state is entitled to restrict the legal status of a person who committed a crime in order to correct and re-educate him, general and special warnings, and the perpetrator is obliged, if possible, to endure personal deprivation. , property or other nature, arising from his conviction on behalf of the state and the application to him, in necessary cases, only of the punishment provided for by the criminal law for the crime committed ”.

Criminal liability is established by the norms of the Criminal Code of the Kyrgyz Republic, which indicate which socially dangerous acts are declared crimes, give an exhaustive list of them in the Special Part of the Criminal Code of the Kyrgyz Republic, and provide for punishment for their commission.

The basis for criminal liability is a necessary and sufficient condition for bringing a person to criminal punishment. There are two aspects of the basis of criminal liability: factual and legal. The actual basisis the fact that a person has committed a socially dangerous act. Legal basisis the presence of a specific crime in this act.

Criminal liability entails:
criminal penalty- This is a measure of state coercion, imposed by a court verdict on a person found guilty of a crime.
The punishment consists in applying to the guilty person the measures of deprivation or restriction of the rights and freedoms that he possessed, provided by law.

Consider the system of criminal penalties.

Fine- This is a pecuniary penalty imposed in the amount of multiples of the minimum wage or income of the convicted person.
Deprivation of the right to hold certain positions or engage in certain activities - this measure is applied in cases where the commission of a crime has become possible or has been facilitated due to official or professional status.
Correctional labor- a measure of punishment that does not require isolation of the convicted person from society and is used to restore a positive social position of the guilty person, preserve or renew the impact of labor and stay in a work collective. At the same time, property impact is also carried out: from the convict's earnings, the part established by the court in the range from 5 to 20% is withheld in the income of the state.

Confiscation of property- This is a compulsory gratuitous seizure of all or part of the property that is the property of the convicted person into the ownership of the state, for grave or especially grave crimes committed from mercenary motives.

Restriction of freedom- keeping the convicted person in a special institution without isolation from society, but under supervision.

Arrestconsists in keeping the convicted person in conditions of strict isolation, for which the necessary security measures are provided.

Deprivation of libertyappointed for serious crimes, crimes of average gravity, systematic commission of crimes or recidivism.

The death penaltyis an exceptional punishment. At present, the moratorium on the use of the death penalty has been lifted in our country.

Part 1 of Article 360 ​​of the Criminal Code of the Kyrgyz Republic provides for punishment for desertion in the form imprisonment for up to five years, and in part 2 - for a period of three to seven years.

In a note to Article 360 ​​of the Criminal Code of the Kyrgyz Republicit is indicated that a serviceman who first committed an act under Part 1 of this article may be exempted from criminal liability if the desertion was the result of a combination of difficult circumstances. It should be emphasized that the law speaks of the possibility of exempting servicemen from criminal liability who have committed unqualified desertion (unauthorized abandonment of a unit or failure to appear in it for the first time).

The content of the concept of “confluence of difficult circumstances” is not disclosed in the law. Serious circumstances can be a serious health condition or death (death) of a close relative of a serviceman (spouse, father (mother), father (mother) of a spouse, son (daughter), brother (sister) or a person who was raising a soldier; fire or other natural disaster that befell the family or a close relative of a soldier. These may also include other exceptional cases when the presence of a soldier in the family is necessary. conscription.

Serious circumstances of an official nature can be hazing by colleagues, domestic disorder, material difficulties, other unfavorable life situations, which, although they do not deprive the opportunity, but significantly complicate the serviceman's stay in the service, violate his legal status, vital interests, honor and dignity.

In each specific case, the question of the existence of these circumstances should be decided individually, taking into account the specific circumstances of the case.

Strict observance of the statutory requirements of life and activities of units and subunits is the most important organizational measure to prevent offenses among military personnel. Organization, discipline and order cannot be achieved by any means. This is achieved by organizing order wherever military personnel live and operate. Struggling to strengthen military discipline, the commander must act only in accordance with the law and regulations. Also, the legal status of servicemen must be strictly observed, commanders must take care of the health, nutrition, material and living conditions of the personnel, and ensure their protection from hazing.

Important organizational and managerial measures to prevent desertion are:

proper control over the presence of personnel in the classroom and work;

control over the legality of the departure of military personnel to medical institutions, vacations and business trips, as well as the timeliness of their return to the unit;

ensuring the exemplary performance of their duties by persons of daily subsistence, order. The use of evening checks, morning examinations and formation to follow to meals, divorce to work, etc .; to control the personnel;

reasonable organization of the personnel's leisure time;

the most expedient placement of officers by subdivisions;

strict, in accordance with the charter, the procedure for dismissal from the location of a military unit;

day-to-day control on the part of commanders and chiefs over the provision of personnel with the prescribed types of allowance, the organization of food and life;

constant, decisive struggle against hazing, connivance and impunity for these violations;

the eradication of unauthorized absences, the inevitability of responsibility for each such case;

control over the storage of seals, forms, leave notes and vacation tickets is a reliable means of combating evasion by forgery, documents or other deception;

prevention of evasion of military service requires a thorough medical examination in order to identify military personnel unreasonably called up for military service for health reasons (2 times a year),

an immediate report on command about the absence of servicemen in the unit, on the ships;

organizing the search for a serviceman who is absent without good reason;

the protection of personal belongings of the soldier who left the part, his documents, diaries, letters, notebooks, albums and other items, since, in the future, they may be required to study the motives and purpose of leaving the part on his own and subsequent actions of the offender.

The above list of organizational measures to prevent evasion of military service, of course, is not exhaustive. The choice of these measures depends on the specific situation.

Educational measures... The basis for the education of personnel in order to prevent evasion from military service is the formation of socially useful interests and needs of servicemen, the provision of pedagogical, psychological and social assistance to those who have stumbled. This path is operational and promising.

An important measure of educational influence on subordinates is the personal example of commanders and superiors in the strictest observance of the current legislation.

Early prevention of crimes is possible only with an individual approach to the educated. The ability to understand a subordinate in a specific life situation and to anticipate his possible deviating behavior is the key to choosing the necessary educational influences. And some of the officers are inclined to believe that all responsibility for the facts of evasion from military service rests with the family, school, labor collective, the closest social environment where the soldier lived, grew up and was brought up. Without denying the influence of unfavorable conditions for the formation of a personality before being called up for military service, it should be recognized that various kinds of omissions in educational work with subordinates seriously deepen these factors.

Taking this into account, in the prevention of evasion from military service, in the conduct of educational work with personnel, it is of great importance to study the personality of each young soldier:

literally in the first hours and days after the arrival of the young replenishment in the unit, detailed individual conversations with the completion of specially designed questionnaires should be held with him. They usually include questions that comprehensively characterize the personality of the sailor, his inclinations, hobbies, etc .;

unit commanders and their personnel assistants establish contacts with parents, who are asked to provide certain information about their son. If necessary, the necessary information can be requested from the relevant institutions;

The success of educational work largely depends on how fully and comprehensively the bosses know their subordinates. When carrying out educational work with young soldiers, it must be borne in mind that the beginning of military service is the most difficult period in the life of a serviceman. The psychological characteristics of adaptation to military service, isolation from family, relatives, friends and other factors require a radical breakdown of previous forms of behavior and the formation of new relationships, habits and skills. Often, a prejudiced attitude is manifested towards young wars, nagging, increased severity, etc. are allowed, which is one of the reasons for the unauthorized abandonment of a unit or place of service, desertion. It is no coincidence, therefore, that the first period of military service accounts for the greatest number of evasions from military service associated with the unwillingness to fulfill their military duty, to endure the hardships of military service in this unit, on a ship.

It is necessary to take into account some of the features of persons committing evasion from military service by simulating illness, forgery of documents or other deception. They have expressed such properties as deceit, dishonesty, striving for all sorts of tricks.

The antisocial behavior of a soldier manifests itself in the form of seemingly insignificant at first misdeeds. Therefore, the prevention of deviations should begin with fixing and taking action for individual offenses. They may be cases of short-term departure from the unit, delays from dismissals.

The forms of educational influence in these cases on the soldier who committed such a violation may be different. The most common ones are:

individual conversations with military personnel. Convincing them of the social danger of such offenses and of the need for strict compliance with the requirements of the law and military regulations;

discussion of offenders at meetings of military personnel, officers' meeting;

clarification of the requirements of the laws on criminal liability for military crimes.

One of the directions in the work on the prevention of evasion of military service is the correct use by the chiefs of all degrees of the disciplinary power granted to them.

Disciplinary action can be used in conjunction with other forms of educational work. The effectiveness of a disciplinary action depends on how reasonably and fairly it is applied.

Measures of a criminal and legal nature.The use of measures of criminal law against persons who have committed evasion of military service is the next area of ​​work in their prevention.

By themselves, these measures do not eliminate social and other causes of criminal behavior. They only affect the psyche of people, stimulate the proper behavior of a person, under the threat of punishment keep him from crimes and other offenses. For the commission of a crime, the perpetrator must bear personal criminal responsibility. It cannot be passed on to commanders and chiefs, provoking them to conceal crimes. The commander must also be held accountable for direct omissions in service that actually contributed to the commission of criminal acts by subordinates.

The effectiveness of preventing new crimes with the help of criminal law means depends on the content of criminal laws, the level of law enforcement and the quality of work of the military justice authorities.

Criminal law enforcement measures also largely depend on how quickly the search and detention of servicemen who have committed desertion, unauthorized abandonment of a unit or place of service are organized, on the timely initiation of a criminal case, its investigation and the adoption of a legal decision.

An important means of preventing evasion of military service is the issuance of a warning by the military prosecutor about the inadmissibility of violating the law. The basis for the warning is reliable information about the actual preparation of officials, for example, for the unauthorized abandonment of a unit or desertion. At the same time, a soldier who has been given a warning is not exempt from disciplinary responsibility.

Preventive work to prevent crimes among military personnel is not limited to this. It is important that preventive work is specific. It must be built on the daily study of the causes and conditions of offenses and crimes in the army. They are changeable. Preventive work should also change in accordance with their changes. Only with the implementation of specific, targeted and comprehensive crime prevention measures can we expect certain successes.

The fight against offenses should be carried out using complex methods on an ongoing basis with the involvement of the achievements of such sciences as sociology, pedagogy, psychology, psychiatry, criminology, criminalistics, criminal law, penal law, etc. conversations in order to eliminate cases of unauthorized abandonment of a unit or place of service and desertion by them.

The task of preventing evasion of military service can be successfully solved on the basis of the complex impact of all means, techniques and methods that are at the disposal of commanders, their assistants for work with personnel, military collectives, and the public. Revealing the causes and conditions of crime, at all its levels, criminology indicates the nature and direction of the necessary preventive measures that need to be taken in the army in order to reduce the level of unauthorized abandonment of a unit or place of service and desertion.

Conclusion

Desertion is a phenomenon of military life that runs throughout history. The reasons for it in different epochs are different, but they have always been common: the desire to avoid danger at the time of the battle, difficult conditions of service, an undeveloped sense of duty, oppression by bosses and others, etc.

The ancient Egyptians had their tongues cut off to those who fled during the battle. The Greeks deprived deserters of their honorary positions, dressed them in a shameful dress, shaved half of their heads and exhibited in this form for 3 days in the marketplace; for a fugitive Spartan, as a dishonest man, not a single girl could marry. In Rome, escape was punishable by death and confiscation of property. The ancient Germans hung deserters from a tree as traitors, but sometimes limited themselves to cutting off the nose, ears, tongue, or gouging out their eyes.

The study of this negative social phenomenon was the purpose of writing this work.

The research carried out in the thesis allows us to draw the following general theoretical conclusions:

ü "Defense of the Fatherland is the duty of a citizen of the Kyrgyz Republic", and a soldier called up for military service must serve it for the period established by the Law in the military unit where he is sent by the relevant command, not leave the location of the unit or place of service without the permission of the chief, be at any moment ready to fulfill their military duty. The overwhelming majority of army soldiers strictly adhere to the established order of service. However, individual servicemen violate this order, commit unauthorized abandonment of a unit or place of service, or completely evade military service.

ü An encroachment on the established procedure for performing military service poses a serious public danger, since military service is a special type of public service designed to protect the Fatherland, and such offenses and crimes as unauthorized abandonment of a unit or place of service and desertion weaken the combat readiness of units and subunits, negatively affect the moral and psychological climate in military collectives. In addition, they often create the basis for the commission of other military or ordinary crimes (embezzlement, hooliganism, violation of the rules of guard or internal service, etc.) or are accompanied by them. Also, the criminality of servicemen is influenced by the strict organization of their life, everyday life, hazing relationships between servicemen, strict statutory control, lack of basic necessities, and many others. other factors mentioned above. Based on the conducted criminal law and criminological research, it can be concluded that the reasons for evading military service lie in two dimensions.

ü First, they are outside the reach of the Armed Forces (in society), when some servicemen come to the army with a reluctance to serve in it. Consequently, it is difficult to expect any serious attitude to his duties from a soldier, and also a forcibly drafted young man spontaneously develops a feeling of protest, which is subsequently expressed in the unauthorized abandonment of a unit or even in evading military service.

ü Secondly, the reasons lie in the Armed Forces themselves, when servicemen have a desire, for one reason or another, which was mentioned above, to voluntarily leave a unit or desert.

ü In order to reduce such crimes, it is necessary, along with preventive measures of an informational and educational nature, to resolve this issue at the state level, that is, to strive to ensure that our army is professional, on a contract basis. Then the servicemen will not have a desire to voluntarily leave a unit or completely evade military service, since they will receive a stable income for serving in the army. Yes, and the employees of the military prosecutor's office will have less work, because almost every third, fourth criminal case among the investigators of the military prosecutor's office is connected with fugitives from the army.

ü Among the preventive measures that directly need to be carried out in the army in order to reduce crime in general, and in particular cases of unauthorized abandonment of a unit or place of service and desertion, a radical reconstruction of the Armed Forces should be carried out, which should include:

1) professionalization of the army - it seems that the most technically equipped units should be mostly staffed with servicemen in the Armed Forces on a contract basis with a gradual transition to a contract basis for all servicemen;

) the transition to conscription into the Armed Forces once a year in order to break the traditional age gradation among military personnel;

) raising the draft age to 21 or at least 20 years, since psychologists argue that a person's personality is finally formed only by the age of 21. A very difficult problem arises. We give a man a weapon and order him to carry out a combat mission recently associated with participation in armed conflicts, that is, with the use of military weapons "to kill", and no one thinks about the social and psychological consequences for a young man, since the formation of him as a person is not yet complete. In many countries of the world the draft age is just 20-21 years old (Turkey, Sweden).

) a qualitatively new level of social protection for all categories of servicemen without exception.

) legislative regulation of the functional duties of the Armed Forces of the Kyrgyz Republic.

Thus, only with the implementation of comprehensive measures can we expect that the cases of offenses and crimes associated with the unauthorized abandonment of a military unit or place of service and desertion will decrease.

It seems to me that the future of Kyrgyzstan's army should be professional. In other words, service, as before, should be mandatory, but with the condition of a possible alternative choice for the conscript. The servicemen must have a contract with a sufficiently high salary for their labor. This will significantly increase the degree of their material responsibility (compensation for damage caused). The level of costs for maintaining a professional army should be calculated, but in our opinion, it will not significantly exceed today's, if we take into account the fight against "evaders, deserters", the damage caused by theft.

[Criminal Code of the Russian Federation] [Chapter 33] ✍ Read the comment to the article

1. Desertion, that is, unauthorized abandonment of a military unit or place of service in order to evade military service, as well as failure to appear for the same purpose in service, shall be punishable by imprisonment for a term of up to seven years. 2. Desertion with a weapon entrusted in service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group, - shall be punishable by imprisonment for a term of up to ten years. Note. A serviceman who has committed desertion for the first time, provided for in the first part of this article, may be exempted from criminal liability if the desertion was the result of a combination of difficult circumstances.

Legal advice under Art. 338 of the Criminal Code of the Russian Federation

Georgy Yanoshin

can I leave the regional recruiting office? they can let go home or have the opportunity to leave on their own

• Lawyer's answer:

  If you have already got to be sent to the collection point, then they are released from there quite rarely. Well, it's better not to remember about unauthorized leaving, because here Art. 328 of the Criminal Code. And if the unauthorized departure occurs after the title has been awarded, that is, after the legal beginning of military service, then Art. Art. 337-338 of the Criminal Code, which is much more serious than the 328th.

Nikita Abalakin

Do they have the right to jail a contractor if he went home and does not go to work? or, in practice, are they simply fired? what is actually done, fired or prosecuted in practice?

• Lawyer's answer:

  In practice, if a criminal case under Art. 337 or 338 of the Criminal Code of the Russian Federation, everything can end in a guilty verdict. The real or conditional punishment will be decided by the court. Taking into account the seriousness of the situation, I recommend that you immediately seek help from a lawyer and then appear before the military prosecutor's office or military unit.

Inna Golubeva

The task of criminal law. Need help. Private of the Armed Forces of the Russian Federation Sh., Not wanting to continue his service, deserted his post with the weapon entrusted to him. After 2 weeks of wandering, having changed his mind, Sh. Returned to his military unit and voluntarily surrendered weapons and ammunition. Is there a voluntary refusal to commit a crime in Sh .'s actions? Check out Art. 338, 339 of the Criminal Code of the Russian Federation.

• Lawyer's answer:

  under part 2 of Art. 338 of the Criminal Code of the Russian Federation he will be tried, part 2 is a qualifying sign of a crime. However, it is worth noting that this crime has a formal structure, so the fact that he returned and surrendered voluntarily will play a role in the court only as an extenuating circumstance (at the discretion of the court). There is no refusal to commit a crime.

Svetlana Fedotova

An example of an ongoing crime?

Olga Soboleva

Served 1 year out of three under the contract. Left the unit with the permission of com. parts and due to circumstance did not return.

• you're an idiot? return to part What is the connection between these three sentences? Or does the contract imply complete freedom of action according to the circumstance? new ??? only if the old one is lost only this is not about you - you have violations ...

Mikhail Svinogonov

In 1998, he voluntarily left the military unit, a criminal case was initiated under Art. 337 p 4. Now 32 years old, when will the persecution end ?. What is the best way to proceed in this case? It ought to be legalized.

• There is no statute of limitations for desertion.

Vera Gromova

Military commissariat .. I went through a medical examination and no deviations were found, in general it is suitable. After the examination, I was told to come to the military commissariat whether to go there or just ignore the summons.

Tamara Fomina

Can an officer be prosecuted for absence from work?

• Lawyer's answer:

  When he was an investigator in the military prosecutor's office (1997-2007), he completed several such criminal cases. This is Art. Art. 337-338 of the Criminal Code of the Russian Federation. These articles apply not only to conscripts, but also to contract servicemen (of course, to officers). The initiators of such cases are the commanders of the military units. Such situations are rare and you still need to try to get the unit commander out. The main sign of the composition of this crime is the constant absence of a soldier at the place of military service (without good reason) for more than 10 days, or an open refusal to perform military service. Not to be confused with truancy. A soldier is a special subject in law and the labor code does not apply to him

Eduard Gonchar

soooo ... so this unfortunate downtrodden Glukhov also turns out to be a conscript ???. oh what discoveries then ... and what are conscripts

• So he is not only a conscript who serves abroad, but also who participated in the war. But they said that only contractors were fighting. And according to his statements, he arrived in South Ossetia in June and dug trenches long before August 8. Oh, how is it all ...

Peter Semenko

How long will they give for desertion in wartime?

Polina Molchanova

What is the percentage of chance that a guy will be killed in the army? well, or make him disabled there ?. Good evening everyone, my friend has a tense situation in the Russian Federation in 2009, he got into the army of the Russian Federation in 2010, it seems after 2 or 3 months he left the army without taking the oath, now he decided to go to them himself in 2010 as he left the army wrote on their many complaints, thus angered the military, he has a civilian wife and a child, a small investigator seemed to be telling him that the criminal case would be closed because he had a combination of difficult circumstances his health was in danger in the army

• Lawyer's answer:

  They won't be recruited into the army again. If the criminal case is closed, they can be sent back to serve in the same unit. And there it all depends on how angry the military is with his complaints. He will not expect a sweet life, but it is unlikely that it will come to murder or incapacitation. The officers do not do this, the colleagues have long ago fallen asleep, and now there is greenery there compared to your comrade. So it will behave quietly and peacefully - the rest of the service will be fine.

Natalia Petrova

what will happen if the contractor leaves the service without permission?

• They'll put you on your lip. Read Art. Art. 337, 338 of the Criminal Code of the Russian Federation! normal punishment for breach of contract ... penalties fines Strange question! Turma will, however, because His Majesty the Criminal Code will come into effect, Articles 337, 338 depending on ...

Alena Nikolaeva

My friend went AWOL for a week. What will happen to him ?. My comrade went AWOL himself personally, a devil of someone else's help near the unit, caught a car and drove home what would happen to the conscript soldier himself and the person who stopped and gave him a lift. The soldier was dressed in civilian clothes.

• The one who gave a lift is not in danger.

Natalia Petrova

in how many days: absenteeism and desertion in the army

• in the SA it seems that if more than 2 days / conscript / is a deserter, but then they served for 2 years and now they serve for 1 year, it is logical to assume that a deserter after 1 day of absenteeism)))

Polina Golubeva

I wrote a rapport for dismissal before the expiration of the probationary period and stopped attending the service can I be jailed

Vladimir Vesnin

lost a labor dispute in the district court, but is willing to go to victory. Where to go?. Please tell me where and what papers to submit and how to draw them up?

• Cassation to the Moscow City Court within 10 days. In your complaint, justify why the first instance court, in your opinion, made the wrong decision, give your arguments

Alena Lebedeva

They took the attributed. I turned 18 years old, passed the second medical examination, after passing I was told to pass the registration certificate and come back on May 28, I presented a delay, the question is, for what purposes do I need to visit my comrades again?

• the actions of the military registration and enlistment office are not legitimate, but where are you doing your business, I think the reason is this

Vadim Cheverov

Whether they will be imprisoned for the unauthorized abandonment of a part of a contract soldier if the probationary period is still underway, I have not judged before. in part did not appear for 1.5 months

• Gg that's the truth they say, no matter how bad things are going with you, there will always be someone who has them even worse: D

Stepan Ovsyanikov

Is Georgia running into "Compulsion to release prisoners of war"?

Sergei Protsko

What groups are crimes against military service divided into?

• Can't open the Criminal Code of the Russian Federation? 1) encroachments on the order of subordination, for example, failure to comply with an order (Art. 332 of the Criminal Code), violent actions against the chief (Art. 334 of the Criminal Code), etc.; 2) encroachments on statutory ...

Anatoly Nagaytsev

Need help look inside. I signed a contract with a probationary period of 3 months, served a week, some didn’t like it, I wrote a letter of resignation, the company commander said I could go home and wait for a call for final dismissal. I refused my absence and went back home, so I realized that my report was postponed until the paycheck and he didn’t let anyone else sign it, went to the prosecutor’s office and wrote a statement, they said they would figure out whether they could throw out my report in part and say that I allegedly left part of it myself

• Lawyer's answer:

  Of course, they will do so, they will file you in the op and institute a criminal case. Until the order of dismissal is issued, you fall under criminal responsibility, now, in order not to get caught, you should not give explanations in the military prosecutor's office that you were absent from the service, by the way, you will soon be summoned there.

Yulia Vinogradova

help =). I am 18 years old, I went through the medical commission at the military registration and enlistment office, they told me that I was good, they gave me a summons, I signed for it, it was written FOR AN APPOINTMENT, I didn’t understand what it meant didn’t go shorter than 1 month later, the call ended on July 15 and there were no summons, does this mean that I will receive on September 15, an agenda for a new appeal? And will I get anything for this agenda?

• Lawyer's answer:

  You can be fined 500 rubles. And then you will undergo a medical examination again. The fact that you took the pictures, the military registration and enlistment office will not worry, most likely they will send you for an additional examination. And there, if you have flat feet of 2 degrees but, with symptoms of arthrosis, also 2 degrees, then you can get category B.

Vera Petrova

Do not tell me what it means, Article 385. Cancellation of the acquittal 2. The acquittal, pronounced on. Do not tell me what it means, Article 385. Cancellation of an acquittal 2. An acquittal, rendered on the basis of an acquittal of a jury, may be canceled at the request of the prosecutor or a complaint of the victim or his representative only in the presence of such violations of the criminal procedural law that limited the right the prosecutor, the victim or his representative to the presentation of evidence or influenced the content of the questions put before the jury and the answers to them. That is, if no one bothered me to provide evidence to the court or the judge didn’t interfere with correctly formulating questions for the jury, then the acquittal by the jury cannot be canceled? Thanks.

• Lawyer's answer:

  For example, if, when the judge formed the questions to be resolved by the jury, the victim was not given the opportunity to submit his proposals on raising new questions to the jury (see the commentary to Part 2 of Art. 338); the judge unreasonably refused to satisfy the petition of the prosecutor or the victim, his representative for the study of additional (indicated by this party) evidence, etc. 3. The Plenum of the Supreme Court of the Russian Federation in paragraph 24 of Resolution No. 1 of March 5, 2004 drew the attention of the courts of cassation the possibility of canceling the acquittal only in compliance with the requirements provided for by Art. 385 of the Criminal Procedure Code<1>... See: Resolution of the Plenum of the Supreme Court of the Russian Federation "On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation" // RG. 2004.25 March.

• • Lawyer's answer:

    Svetlana, the last changes in the Criminal Code of the Russian Federation were introduced by the Federal Law of March 7, 2011 N 26-ФЗ "On Amendments to the Criminal Code of the Russian Federation" (entered into force on March 11, 2011). So, according to the specified Federal Law, changes to the code are made to various articles of the Criminal Code of the Russian Federation, starting from 74 to 338 (for the link in the source, see the Federal Law itself with amendments). Consequently, no changes to Art. 69 of the Criminal Code of the Russian Federation was not introduced. The last changes were made to its 3rd part as revised. Federal Law of 08.12.2003 N 162-FZ (see the current edition below). Article 69. Imposition of punishment for cumulative crimes 3. If at least one of the crimes committed in aggregate is a grave or especially grave crime, then the final punishment is imposed by partial or complete addition of punishments. At the same time, the final punishment in the form of imprisonment cannot exceed more than half the maximum term of punishment in the form of imprisonment provided for the most serious of the crimes committed. (Part three as amended by Federal Law of 08.12.2003 N 162-FZ)

Boris Samunin

Please see if I solved the problem correctly? Serviceman Voronov, being on short-term leave in the Ulyanovsk region, decided to evade further service. To this end, he staged a suicide and moved to one of the cities of the Altai Territory. After some time, Kolosov was detained in Moscow, where he was sent on a business trip. Determine the location of the crime and the criminal law to be applied. Answer 1. The place where the crime was committed will be the military unit where the Ravens served. 2. In this case, Art. 339 of the Criminal Code of the Russian Federation of 06/13/1996

Leonid Krestovozdvizhensky

gentlemen lawyers who ever dealt with the jury ?. What questions can they be asked on the list on the day of the verdict?

• Lawyer's answer:

  Criminal Procedure Code of the Russian Federation Article 338. Statement of issues to be resolved by the jury 1. The judge, taking into account the results of the trial, the debate of the parties, formulates in writing the issues to be resolved by the jury, read them out and hands them over to the parties. The parties have the right to express their comments on the content and wording of the questions and make proposals on the formulation of new questions. In this case, the judge does not have the right to refuse the defendant or his defense counsel to raise questions about the existence of factual circumstances in the criminal case that exclude the defendant's responsibility for the deed or entail his responsibility for a less serious crime. 3. At the time of discussion and formulation of questions, the jury is removed from the courtroom. 4. Taking into account the remarks and suggestions of the parties, the judge in the deliberation room finally formulates the questions to be resolved by the jury, and enters them into the question sheet, which is signed by him. 5. The questionnaire shall be read out in the presence of the jury and handed over to the foreman of the jury. Before being removed to the deliberation room, the jury has the right to receive clarifications from the presiding judge on the ambiguities that have arisen in connection with the questions raised, without touching upon the essence of possible answers to these questions. Article 339. Content of questions to the jury 1. For each of the acts committed of which the defendant is accused, three main questions are raised: 1) whether it has been proven that the act took place; 2) whether it has been proven that the defendant committed the act; 3) whether the defendant is guilty of committing this act. 2. In the questionnaire, it is also possible to raise one main question about the guilt of the defendant, which is a combination of the questions specified in part one of this article. 3. After the main question about the guilt of the defendant, private questions can be raised about such circumstances that affect the degree of guilt or change its nature, entail the release of the defendant from responsibility. In necessary cases, questions are also raised separately about the degree of implementation of the criminal intent, the reasons for which the act was not completed, the degree and nature of the complicity of each of the defendants in the commission of the crime. Questions are permissible to establish the guilt of the defendant in the commission of a less serious crime, if this does not worsen the position of the defendant and does not violate his right to defense. 4. If the defendant is found guilty, the question is raised whether he deserves leniency. Issues requiring jurors to legally qualify the status of a defendant (on his conviction), as well as other issues that require a proper legal assessment when the jury delivers their verdict, cannot be raised separately or as part of other issues. The wording of the questions should not allow, in any answer to them, to recognize the defendant as guilty of committing an act for which the public prosecutor did not charge him or does not support the prosecution at the time the questions were raised. 7. Questions to be decided by the jury are put in relation to each defendant separately. 8. Questions are posed in formulations that the jury understands.

Yuri Kabin

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Introduction

2g Legal analysis of the composition for desertion

Conclusion

Glossary

List of sources used

Appendix A

Appendix B

Introduction

The current legislation provides for criminal liability for crimes against military service, which are understood as socially dangerous acts infringing on the established procedure for military service, committed by military personnel, as well as by citizens in the reserve during their military training. The public danger of this kind of criminal acts is also associated with the fact that they occupy an essential place in the structure of the criminality of servicemen. Moreover, in recent years, there has been a qualitative change in the nature of this type of crime: more and more often such illegal acts are associated with other crimes - violent actions against colleagues and commanders, murders, theft of firearms and ammunition, robberies, etc. All this further increases the social danger of the considered criminal offenses and determines the need to study them in order to develop effective preventive measures. It should be noted also the high latency of the considered type of crime.

As the main feature uniting crimes against the order of stay in military service, the scientific literature indicates the goal - the unwillingness of the subject to stay in military service and fulfill the duties arising from it.

Thus, the purpose of the course work is to analyze the criminal liability for desertion.

For a detailed study of this goal, we distinguish the following tasks for disclosing the topic:

Investigate the formation and development of criminal legislation on liability for evading military service;

To characterize some problems of theory and practice of the subjective side in crimes against military service;

Consider the motive for the crimes and the socio-economic reasons for desertion;

Analyze the features of qualification and differentiation of the offenses of unauthorized abandonment of a unit or place of service (Art. 337 of the Criminal Code of the Russian Federation) and desertion (Art. 338 of the Criminal Code of the Russian Federation) in the Criminal Code of the Russian Federation.

The object of this work is the social relations that develop in connection with the unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for the same purpose in service.

The subject of the research is presented by the criminal law and the means of influencing the public relations under consideration from the standpoint of increasing their effectiveness in the fight against desertion and unauthorized abandonment of a unit or place of service.

The structure of the course work. The work consists of an introduction, two main chapters, a conclusion, a glossary, a list of sources used and annexes.

desertion criminal responsibility

1. Historical aspects of the regulation of criminal liability for desertion

1.1 Formation and development of criminal legislation on liability for evading military service

The purpose of the army has always been and is - the protection of the integrity and sovereignty of the state, the existing order in it. At the same time, the military could never fulfill the tasks assigned to them if each of them acted at his own discretion. The strength of the army lies in unity of command. The principle of one-man command gives commanders (chiefs) the power to give orders and demand their execution, and obliges subordinates to execute such orders.

Military criminal legislation has as its task the protection of the combat effectiveness and combat readiness of the Armed Forces, other troops, military formations and bodies in order to ensure the military security of the Russian Federation. Federation, the personality of servicemen, their rights and freedoms, military discipline and the entire procedure for military service from criminal encroachments. To accomplish this task, it determines what encroachments on the procedure for performing military service constitute military crimes, establishes penalties that can be applied to persons guilty of committing them. Protecting public relations in the field of military activities of the state from criminal encroachments, military-criminal legislation has a regulatory effect on the order of military relations, contributes to the prevention of crimes, education of servicemen in the spirit of strict observance of the Constitution of the Russian Federation, laws and military regulations, conscientious fulfillment of military duty, respect for norms common human morality.

So, let's turn to history and explore the stages of the formation of criminal legislation on responsibility for evading military service from October 1917 to the present.

After the victory in the Civil War, the young Soviet state faced the problem of its defense. To accomplish this task, special attention was paid to the creation of new Armed Forces, which, in terms of their performance, would be much superior to the enemy's armies.

The stages of building the Armed Forces of the Soviet state and the tasks they are solving in connection with this to ensure the combat readiness of troops contributed to the formation of a new military criminal legislation. The history of military criminal legislation after 1917 is inextricably linked with the emergence and development of the Soviet Armed Forces. At all stages of the formation and development of the armed forces, great importance was attached to maintaining an appropriate order of military service, which was largely facilitated by the establishment of criminal liability for socially dangerous violations of this order.

Legislation on the responsibility of military personnel for committing military crimes during the Civil War was mainly limited to the regulation of liability for evasion of military service.

From the first days of the creation of the Workers 'and Peasants' Red Army, the legislator paid attention to the fight against evasion of military service, especially desertion. During the years of foreign military intervention and the Civil War, a number of decrees were issued on the fight against desertion, in which this crime was considered one of the most serious and shameful.

December 27, 1918 The Council of the Workers 'and Peasants' Defense adopted a resolution "On the fight against desertion." Considering desertion "one of the most grave and shameful crimes", the decree demanded "to use all the energy of state power to fight against it." Punishment for desertion was established from monetary deductions (three times the amount of maintenance during the absence) to execution. Harboring deserters were punished by sending them to forced labor for up to five years.

By the decree of the Central Commission for Combating Desertion of February 18, 1919, it was established that a deserter is "any serviceman who has been absent from his unit for more than seven days."

On March 3, 1919, the Council of Workers 'and Peasants' Defense adopted a decree "On measures to combat desertion", which paid special attention to the obligation of the organizations of the Soviet Republic to strictly monitor the employees of these institutions to serve their military service.

On June 20, 1919, the Council of Workers 'and Peasants' Defense adopted a resolution "On measures to eradicate desertion", which emphasized the danger of this crime and provided for severe punishment for deserters (up to execution), as well as the possibility of applying to the guilty the confiscation of all or part of the property and deprivation for a period or forever of a land plot.

Thus, during the Civil War and foreign military intervention, the Soviet state issued regulations governing the responsibility of servicemen leaving their units.

On February 5, 1921, the All-Russian Central Executive Committee and the Council of People's Commissars (hereinafter SNK) adopted a decree "On the fight against desertion", providing for the consideration of cases of deserters and their accomplices by the people's courts, with the exception of cases of desertion committed under aggravated circumstances, namely:

Desertion in a combat situation;

Desertion of command, administrative and commissar personnel;

Desertion, burdened with participation in armed gangs (banditry);

Harboring, aiding and conniving at desertion by responsible officials;

Participation in gangs that produce and distribute false military documents.

By the decree of the fourth session of the All-Russian Central Executive Committee of the IX convocation of 1922, a new version of the articles was given, providing for responsibility for evading military service. The resolution as a whole strengthened the responsibility for the escape, and unauthorized absence was subject to disciplinary punishment. Part 2 of Article 206 was also introduced, which provided for liability for evasion of military service by the listed methods, "committed in wartime or in a combat situation."

These changes were reduced to a significant reduction in the duration of absence - to two hours, repeated unauthorized absences (less than two hours) became criminal, a new composition of unauthorized absences was introduced, formulated as the unauthorized abandonment of a unit or place of service, lasting for a certain time (from two to twenty four hours), increased responsibility for unauthorized absences, the previously used concept of "escape" was replaced by the concept of "desertion." At the same time, the content of the corpus delicti covered by this concept changed: desertion began to mean the unauthorized abandonment of a unit or place of service, if it lasted more than one day. The intention of a person to evade military service duties for a long time or altogether has ceased to be a qualifying sign of desertion.

During the Great Patriotic War, the legislation on the responsibility of servicemen for evading military service was not amended, since it was in line with the tasks of combating these crimes.

The 1996 Criminal Code of the Russian Federation provides for liability for crimes against the procedure for staying in military service in Articles 337-339 (unauthorized abandonment of a unit or place of service, desertion and evasion of military service duties by simulating illness or in other ways), which, according to their content is somewhat different from the content of the corresponding articles of the former Criminal Code of the RSFSR.

Analysis of the development of criminal legislation on responsibility for unauthorized abandonment of a unit or place of service allows us to formulate a number of conclusions:

From the first days of the creation of the Workers 'and Peasants' Red Army, the legislator paid great attention to the fight against evasion of military service, especially desertion.

The adoption in 1922 of the RSFSR Criminal Code was an important stage in the development of legislation providing for the responsibility of servicemen for evading military service. In this code, for the first time in the legislation, a clear definition of three specific elements of crimes was given: a) escape (Article 204); b) unauthorized absence; c) the evasion of a serviceman from military service or from participation in hostilities by inflicting any damage on himself or by other deception (simulation of deafness, dumbness, blindness, mental illness, etc.) (Article 206).

For the first time, the concept of "self-harm" was introduced, which allows one word to denote the evasion of a serviceman from the duties of military service by causing harm to his health.

1.2 The subjective side of crimes against military service: some problems of theory and practice

Strengthening the rule of law and law and order in the Russian army is one of the most important tasks facing the state at the present time.

Only in such conditions it is possible to ensure the observance of military discipline and, as a consequence, the combat readiness and defense capability of the country. At the same time, the solution of this problem should be carried out in several directions, among which the improvement of the current legislation on military duty and military service, as well as the practice of its application, is of great importance.

One of the central places in the system of measures to ensure military discipline is occupied by the norms of criminal law, especially the provisions of Chapter 33 of the Criminal Code of the Russian Federation, which provides for liability for crimes against military service. It is worth agreeing with V.V. Luneev, who believes that “the social harm of crimes in this area is associated not only with the violation of public order, characteristic of the criminal acts of ordinary citizens, but also with the weakening of military discipline as the most important component of the combat readiness of military units and connections ". This idea, in fact, is a development of the provisions expressed at the beginning of the XX century. NI Faleev: "While protecting military law and order through punishment, the state at the same time protects the same rule of law - military discipline."

Thus, we can confidently speak about the special role of criminal law in strengthening the rule of law in the field of military service in general and military discipline in particular, in connection with which the issues of theory and practice of applying the norms of Chapter 33 of the Criminal Code of the Russian Federation deserve increased attention. The scale of this work does not allow us to cover the entire range of problems arising in the field of law enforcement of these legal provisions, therefore we will focus only on the subjective side of crimes against military service.

In accordance with Art. 5 of the Criminal Code of the Russian Federation "a person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences in relation to which his guilt has been established." This provision is constantly reflected in the explanations of the Supreme Court of the Russian Federation, which systematically indicates the need to establish in each case the type of guilt, motives, goals, emotional states, as well as evidence on the basis of which the court came to the conclusion that certain circumstances had or did not actually take place. This attitude of the legislator and the higher court to the signs of the subjective side is not accidental: being an independent element of a crime, they “serve as one of the grounds for criminal responsibility, significantly affect the public danger and, therefore, a legal assessment of the deed, act as factors of differentiating various crimes in the process of their qualifications affect the individualization of responsibility and punishment ”. The foregoing fully applies to crimes against military service.

One of the debatable issues of military criminal law is the question of the form of guilt in the elements of those crimes provided for by Articles of Chapter 33 of the Criminal Code of the Russian Federation, in which Part 1 and Part 2 do not contain an indication of a possible form of guilt, and Part 3 speaks of negligence ... Such a picture is observed, for example, in Art. 332 of the Criminal Code of the Russian Federation "Non-execution of the order".

According to A. V. Sapsay, “the acts provided for in parts 1 and 2 of Art. 332 are committed intentionally, with direct or indirect intent. At the same time, the attitude of the perpetrator to the consequences of failure to comply with the order may be characterized by imprudence. A crime qualified under Part 3 of Art. 332, is committed through negligence, it is the result of a negligent or dishonest attitude of the perpetrator to the service. "

In turn, OK Zatelepin, referring to the provisions of Part 2 of Art. 24 of the Criminal Code of the Russian Federation, offers the following solution: in Part 1 of Art. 332 of the Criminal Code of the Russian Federation, guilt can be either intentional or careless, and in part 2 of this article - only intentional, since otherwise there would be no difference between it and part 3.

In this case, there is a certain opposition of part 3 of the article under consideration (failure to comply with an order due to a negligent or dishonest attitude to the service, which entailed serious consequences) and parts 1, 2, which refer to the failure of subordinates to comply with the order of the chief, issued in the prescribed manner, causing significant harm the interests of the service (part 1) and the same act committed by a group of persons, by a group of persons by prior conspiracy or an organized group, as well as entailing grave consequences (part 2). The opposition is seen in the legislator's use of the epithets "careless, unscrupulous": according to the meaning of the law, it turns out that in the first two cases we are talking about deliberate non-observance of the order. If we turn to the dictionaries of the Russian language, then there you can find the following interpretation of these terms: "careless - not diligent, treating without due diligence to his duties, work", "unscrupulous - performed poorly, carelessly, without sufficient diligence." Based on this understanding, it can be assumed that in part 3 of Art. 332 of the Criminal Code of the Russian Federation describes situations in which servicemen, having no intention of not specifically fulfilling the order given to them in the prescribed manner, nevertheless do not fulfill the task entrusted to them due to an irresponsible attitude towards their duties and military duty. Moreover, under this part of Art. 332 of the Criminal Code of the Russian Federation should qualify situations when military personnel began to actually carry out actions that are the content of the order received, but as a result of negligence they did not achieve the desired result. In any case, in these situations, we can only talk about a careless form of guilt in relation to the very failure to comply with the order, and even more so in relation to the consequences that have occurred.

In turn, in parts 1 and 2 we are talking about cases of deliberate non-fulfillment of the given order, which can be expressed in obvious, demonstrative inaction, as well as disguise as the fulfillment of the given order, without the goal of actually executing it (creating the appearance of work). Therefore, we believe that here it is necessary to speak only about an intentional form of guilt in relation to the fact of failure to comply with an order and about any - in relation to the consequences.

I would also like to draw attention to the purpose of military crimes. In many articles of Chapter 33 of the Criminal Code of the Russian Federation, it is not indicated as a constructive feature of the corpus delicti of certain crimes. However, its establishment is the responsibility of the preliminary investigation authorities and the court in each criminal case of a military crime. This is due to the fact that it affects the qualification of the offense. For many intentional crimes against military service, it is necessary to check whether the act was committed in order to assist a foreign state, foreign organization or their representatives in carrying out hostile activities to the detriment of Russia's external security, and when it is established - to qualify the deed under Art. 275 of the Criminal Code of the Russian Federation (high treason).

In addition, the goal can play the role of a demarcating feature that makes it possible to distinguish one military crime from another. So, for example, desertion (Article 338) by all objective signs may coincide with the composition of the unauthorized abandonment of the unit (Appendix A). Therefore, the only criterion for distinguishing them from each other is the goal - for desertion, it is traditionally defined as the intention to completely evade military service.

In addition to the indicated theoretical problems of determining the signs of the subjective side of crimes against military service, I would like to draw attention to a number of problematic points that arise in the practical activities of the preliminary investigation bodies and courts for this category of crimes.

1. Unreasonable qualification of the actions of the convicted person as a military crime in the absence of real intent to commit such

Thus, by the verdict of the Krasnoyarsk garrison military court dated August 5, 2011 Pr. convicted of crimes under Part 3 of Art. 337 and part 1 of Art. 338 of the Criminal Code of the Russian Federation, with the application of Part 3 of Art. 69 of the Criminal Code of the Russian Federation.

The court of first instance established two periods of evasion. from military service: from December 30, 2009 to January 21, 2010 (temporary) and from March 25, 2010 to April 25, 2011 (with the intention not to take up military duties at all).

In the course of the cassation examination, the District Military Court, based on the circumstances established by the case materials, indicated that the second period of evasion was reasonably imputed to the convict, which is confirmed by the relevant evidence.

At the same time, the case file contains an order of the investigator dated December 30, 2009, pursuant to which Pr. arrived on the same day at the Krasnoyarsk City Clinical Hospital No. 6, from where he was immediately sent to another medical institution - the Berezovskaya Central Regional Hospital, where he underwent examination and treatment. For inpatient treatment Pr. was admitted to the hospital only on January 21, 2010, after the availability of vacancies.

According to subparagraph "h" of clause 1 of Art. 37 of the Federal Law "On Military Duty and Military Service", a soldier is considered acting military service if he is on treatment, going to the place of treatment and back.

Thus, in the period from December 30, 2009 to January 21, 2010, Pr. he did not shy away from military service, but fulfilled the instructions of the investigator for examination and treatment.

These circumstances are confirmed by the relevant extracts from the medical record of the outpatient, the testimony of the attending physician, as well as the certificate and discharge epicrisis available in the case file.

It seems that under such circumstances, in the actions of St. there was no intention to unauthorized leaving the place of service during the specified period. Therefore, we consider it reasonable that the West Siberian District Military Court overturned the above verdict in the relevant part and discontinued the criminal case.

2. The absence in the sentence of a description of the signs of corpus delicti (in particular, intent), non-admission of evidence of their presence

Thus, it was established in the case that Al. On March 12-13, 2010 in the evening in a secluded place of the unit's barracks, for personal enrichment, threatening to beat him up, he demanded from his colleague Dr. in the near future to transfer him 1,500 rubles. for their own needs.

Later, for the same purpose, using violence, as well as threats of violence, he demanded that the victim give him a part of the specified amount of money.

Actions of Al. qualified by the court under clause "c" part 2 of Art. 163 of the Criminal Code of the Russian Federation and under Part 1 of Art. 335 of the Criminal Code of the Russian Federation.

Meanwhile, from the materials of the case it was clear that the intention of the convict was aimed only at the seizure of someone else's property. Whether there was intent in his actions to violate the statutory rules of relations between servicemen, the materials of the case have not been established.

In turn, within the meaning of Art. 335 of the Criminal Code of the Russian Federation, the use of physical violence by one serviceman to another can be recognized as a violation of the statutory rules of relations between servicemen in the absence of subordination relations between them only if it is applied in connection with the performance of the victim's duties in military service, or when performing at least one of these duties or when the use of violence, although not directly related to the performance of military service duties, was associated with an obvious violation of the order of military relations for the perpetrator and expressed clear disrespect for the military collective.

Considering that the case file does not contain any evidence of the commission of Al. of the indicated act for the above-described reasons, we find absolutely justified the decision of the Presidium of the East Siberian District Military Court to exclude part 1 of Art. 335 of the Criminal Code of the Russian Federation.

3. Incorrect determination of the purpose of the crime

Thus, by the verdict of the Barnaul garrison military court P. was convicted under Art. 338 h. 1 of the Criminal Code of the Russian Federation. Desertion was committed by him in the period from January 25, 2007 to January 29, 2009.

Meanwhile, an analysis of the case materials casts doubt on the existence of the guilty party's goal of completely evading military service, which is an obligatory sign of desertion.

As was seen from the testimony of the convicted person himself, witnesses B., Khr. and S., P. in October 2006, in accordance with the established procedure, filed a report on early dismissal from military service for personal reasons, and according to it, the command initiated the issue of such dismissal.

Without illegally leaving the service since January 25, 2007, P., according to his explanations, was awaiting a solution to the issue of his dismissal, living at a place known to the command of the unit, as evidenced by the fact that officer Chr. in April 2007 tracked him down. In this case, P. at the suggestion of Chr. executed a number of documents necessary for early dismissal from military service already due to non-compliance on his part with the terms of the contract, while signing a conversation sheet about the upcoming dismissal.

The voluntariness of P.'s admission to military service under the contract also implies the possibility of early dismissal of this person on the grounds established in the Federal Law "On Military Duty and Military Service".

Having put such a question before the command before the start of evading military service, and then illegally removing himself from the sphere of military legal relations, P. counted on the expected positive decision for himself, which indicates the intention of the perpetrator only for temporary evasion from military service.

As the West Siberian District Military Court rightly noted in its determination, "... under such circumstances, the convict's assertion that he repeatedly initiated the process of his dismissal from military service, each time supported by the command of the unit, the evidence examined in the court session was not refuted."

In connection with the foregoing, we believe that the cassation court reasonably concluded that P.'s evasion from military service was initially temporary in nature, and rightly reclassified what he had done from Part 1 of Art. 338 of the Criminal Code of the Russian Federation, part 4 of Art. 337 of the Criminal Code of the Russian Federation.

A reverse example is the case of private M., who was convicted of a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation.

The bodies of the preliminary investigation accused M. of desertion. At the same time, the charges against M. were based on the circumstances of his prolonged evasion from military service - over 3 years, as well as the fact that he concealed his belonging to the army, worked on temporary jobs and had no goal of continuing military service.

However, as the court established, M., with the aim of temporary evasion from military service, on March 29, 2006, left the unit without permission and went to the place of his parents' residence in the city.<...>where he began to spend time on his own. On June 10, 2009 M. applied to the Chita garrison investigation department and declared himself.

Regarding these actions M. as unauthorized abandonment of a unit lasting more than one month and retraining them to Part 4 of Art. 337 of the Criminal Code of the Russian Federation with Part 1 of Art. 338 of the Criminal Code of the Russian Federation, the court referred to M.'s successive testimony that he wanted to temporarily take a break from military service. At the same time, the court concluded that the absence of intent to desertion was also evidenced by the objective behavior of the convicted person, who during the period of illegal stay outside the military unit lived at the place of residence of his parents, did not hide and did not try to legalize his position, voluntarily appeared before the investigating authorities and stated About Me. In addition, in the court's opinion, this was evidenced by the testimony of witnesses from among M.'s relatives, who explained that M. in the period from April 2006 to June 2009 constantly expressed his intention to apply to the military prosecutor's office in order to understand the issue of military service. ...

The qualification of M.'s actions as unauthorized abandonment of a unit lasting more than one month raises certain doubts in this case. Obviously, for a correct assessment of the offense, it was necessary to study in detail the goals and motives of the actions of the guilty person. First of all, the accused himself had to be questioned in detail on this matter, after which his testimony had to be carefully checked and compared with other evidence. But as the analysis of the case materials shows, the court, when passing the sentence, was based only on the testimony of the defendant.

Meanwhile, the court had to analyze in aggregate all of M.'s criminal behavior over the course of three years of evasion: his attitude to military service, facts of inaction and failure to take measures to stop his criminal acts of evading military service, the fact of his employment during the specified period, duration stay outside the part.

4. Using incorrect wording when describing the signs of the subjective side of crimes against military service

As the analysis of the materials of criminal cases on crimes provided for in Chapter 33 of the Criminal Code of the Russian Federation shows, the bodies of preliminary investigation and courts do not always provide correct formulations of those signs of corpus delicti that are constructive. So, we have come across the following descriptions of the purposes of the crimes under Art. 337 and 338 of the Criminal Code of the Russian Federation: "in order to take a break from military service", "in order to take a break from the performance of military service duties", "wanting to take a break from military service", "trying to avoid the obligation to perform military service", "with the intention to stop performing duties military service ", etc.

It seems that all of these options speak about the motive of these crimes, but not about the purpose. Therefore, we consider it fair to make the comments of the district military courts about the need to indicate in the sentences the goal of temporarily evading military service (for Article 337 of the Criminal Code of the Russian Federation), and in cases of desertion, in order to completely evade military service.

Summing up, I would like to note that the problems of the subjective side of crimes against military service, of course, are not exhausted - they are much more voluminous and multifaceted.

Therefore, we consider it necessary to continue researching all the complex issues related to the qualification of this group of crimes, because ultimately this will have a positive impact on the state of legality in the ranks of the RF Armed Forces and will ensure the defense capability of Russia.

2. Legal analysis of the composition for desertion

2.1 Motive of crimes and socio-economic reasons for desertion (Art.338 of the Criminal Code of the Russian Federation)

This crime is defined in the law as the unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for the same purpose for the service committed by a conscript serviceman (Article 338 of the Criminal Code of the Russian Federation).

The objective side of desertion is expressed in the unauthorized abandonment of a military unit or place of service by a soldier, or in his failure to appear in a unit (for service) from a vacation, a business trip, or a medical institution. Desertion is a continuing crime with a formal composition and is considered completed from the moment the serviceman leaves the unit or leaves the place of service, or from the moment of failure to return from vacation, business trip, or medical institution within the prescribed period. However, the criminal state of a deserter continues as long as he has a duty to perform military service imposed on him by the Constitution of the Russian Federation (Article 59) and the RF Law on military duty, according to which male citizens are subject to conscription into active military service. between the ages of 18 and 27. Upon reaching the age of 27, they are exempt from conscription. On this basis, desertion as a continuing crime actually ceases from the moment a person is released from the obligation to carry out active military service. Other grounds for ending the criminal state of a deserter are his surrender or detention by the authorities.

The subjective side of desertion is characterized only by direct intent and a special purpose - to evade military service.

The subjects of the crime are conscripts.

The qualified type of this crime is provided for by Part 2 of Art. 338 of the Criminal Code of the Russian Federation. The law establishes stricter liability for desertion with a weapon entrusted in the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group. The 1960 Criminal Code of the RSFSR did not provide for these signs. According to the current Criminal Code of the Russian Federation, if a serviceman deserted with a weapon entrusted in service, his actions are fully covered by Part 2 of Art. 338 of the Criminal Code of the Russian Federation. Only in the case of theft of a weapon not entrusted to him, responsibility comes for the totality of crimes. The concept of desertion committed by a group of persons by prior conspiracy is disclosed on the basis of the provisions of Part 2 of Art. 35, and by an organized group - the provisions of part 3 of the same article of this Code.

Article 338 of the Criminal Code of the Russian Federation has a note: a serviceman who first committed desertion under Part 1 of this article may be exempted from criminal liability if he voluntarily surrendered or the desertion was the result of a combination of difficult circumstances. Severe circumstances can be recognized: the death or serious illness of one of the parents or close relatives, a natural disaster or the destruction of a home, family by fire, and the like, requiring the serviceman to be with the victims to provide them with assistance.

2.2 Features of the qualification and delimitation of the offenses of unauthorized abandonment of a unit or place of service (Article 337 of the Criminal Code of the Russian Federation) and desertion (Article 338 of the Criminal Code of the Russian Federation) in the Criminal Code of the Russian Federation

A citizen called up or enlisted in military service in the Armed Forces of the Russian Federation, other troops, military formations and bodies is obliged to perform military service for a specified period in one or another military unit where he is sent by the relevant command, at any time to be ready to perform his military duty. Most of the servicemen strictly adhere to the established order of military service and conscientiously fulfill their military duty. However, individual servicemen violate this order by evading military service duties by unauthorized abandonment of a military unit or place of service, desertion, self-harm, feigning illness, forgery of documents, etc.

Various types of evasion from military service pose a serious public danger.

By committing such crimes, servicemen violate either individual requirements of the order of military service (for example, to be at the location of a military unit, to return to the unit from a business trip, vacation within a specified period, to serve in the place and as part of that military unit where it is determined by the relevant command , etc.), or in general the obligation to do military service (for example, in the event of desertion). These offenses weaken the combat capability of a subunit, unit, ship, and negatively affect the state of combat readiness of troops and naval forces. In addition, these offenses make it difficult to recruit the army and navy with the personnel necessary for the successful fulfillment of the tasks assigned to them.

The social danger of the types of evasion from military service provided for by the Criminal Code of the Russian Federation also lies in their negative impact on other morally unstable, undisciplined servicemen. In addition, they often create the basis for the commission of other common criminal and military crimes (crimes against the person, theft, hooliganism, violations of the statutory rules for carrying out special services, etc.) or are accompanied by them.

Various types of evasion from military service occupy a significant place in the structure of crimes committed in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, and are among the most common crimes against military service.

Thus, in the structure of criminality against military service, unauthorized abandonment of a unit or place of service takes second place after violation of the statutory rules of relations between servicemen in the absence of subordination relations between them (Article 335 of the Criminal Code of the Russian Federation). At the same time, the number of other crimes against military service, including desertion, is an order of magnitude lower. It is interesting that the qualification of what was done in 94.5% of the investigated criminal cases on the facts of unauthorized leaving military service and in 93.2% of the investigated criminal cases on the facts of desertion is characterized by the presence of aggravating circumstances. This testifies to the high public danger of these types of crimes at the present time, the fight against which has been and remains one of the urgent tasks of the command, the army and navy community, as well as the bodies of military justice. The foregoing actualizes the need to improve the criminal law provisions providing for liability for crimes against military service.

The compositions of the unauthorized abandonment of a unit or place of service (Article 337 of the Criminal Code of the Russian Federation) (Appendix B) and desertion (Article 338 of the Criminal Code of the Russian Federation) are related: the difference lies in the signs of the subjective side, the most difficult to prove, therefore, their distinction is of interest both from a theoretical and from a practical point of view.

The Plenum of the Supreme Court of the Russian Federation, in its resolution of April 3, 2008 No. 3 "On the practice of consideration by courts of criminal cases on evasion of military service and military or alternative civilian service" and 338 of the Criminal Code of the Russian Federation, the courts must proceed from the fact that liability under Article 337 of the Criminal Code of the Russian Federation occurs only if the person intends to temporarily evade military service and, after a certain period of time, return to the unit (to the place of service) for military service. In case of desertion (Article 338 of the Criminal Code of the Russian Federation), a person has the goal of completely evading the fulfillment of military service duties. If a soldier has such a goal after unauthorized abandonment of the unit (duty station), the deed should be qualified only as desertion.

Intention to desertion may be evidenced by such circumstances as the acquisition or manufacture by a person of forged identity documents or evidence that a citizen has served the statutory period of military service or has a deferral from conscription, employment, etc. "

The study of data on the motive and purpose of committing a crime makes it possible to correctly qualify a crime, to identify the reasons and conditions conducive to its commission, to predict the behavior of a serviceman both during the period of evading military service and during the investigation. In this regard, it seems important to trace the evolution of the motivational sphere of servicemen evading military service.

So, the main motives for committing this act in the 1960s. there was a desire to take a break from military service and spend time idly (53% of cases), the desire to visit relatives was manifested in 17% of cases. In the 1970s. these motives were noted in 26% of cases, and the main motive was the unfavorable situation in the family, which manifested itself in 27% of cases.

In the 1980s-1990s. the prevailing motives of servicemen to evade military service duties were incorrect actions of their superiors in relation to subordinates (52%), and the above motives were only 9%.

Currently, scientists put forward the following among the main motives for evading military service: the desire to take a break from service and spend time idly - 45%, the desire to visit relatives - 16.7%, family problems - 14.5%, intolerance of hardships and deprivation of service - 5.6%, ignorance of the law - 5.6%, fear of responsibility for a disciplinary offense - 4.2%, desire to avoid hazing between servicemen - 2.8%, unwillingness to serve in the Armed Forces - 2.8%, improper execution the command of their duties - 1.4%, poor relations with the command - 1.4%. Thus, there is a return of the motivational sphere to the state characteristic of the 1960s, which indicates the problems of a cultural and educational nature, shortcomings in ensuring that military personnel receive emotional relaxation and physical rest after performing their official duties.

At the same time, it is important to note that for temporary retirement from military service, typical motives are the desire to visit relatives, acquaintances, solve family and personal affairs, satisfy various temporary intentions (to spend time idly, meet a woman, drink alcohol). Typical motives for desertion include: unwillingness to endure the hardships and deprivation of military service or serve in a certain branch of the military, the desire to solve personal and family problems of a permanent nature and avoid criminal liability for crimes committed during the period of service. However, this difference is not always taken into account when investigating crimes of this type. In the course of the study, certain difficulties were identified related to proving the purpose of evading military service. For example, in 9% of the studied criminal cases, the validity of qualifying a crime is questionable. All these crimes were qualified under Art. 337 of the Criminal Code of the Russian Federation, however, the study of the circumstances of the commission of the crime gives every reason to believe that the servicemen left the military units in order to completely evade further service. At the same time, in 41% of cases, the actions of military personnel showed signs that directly indicate this - the production of forged identity documents, employment, and in other cases, the evasion period ranged from 5 to 9 years. However, in the course of criminal investigations, little was studied of the motivational sphere, and information about the motives for the commission of the crime was not used to refute the statements of the military that they had no intention of leaving the military forever.

Thus, on September 17, 2007, serviceman A. M. Aliyev, in order to temporarily take a break from military service, did not appear on time without good reason for the service. During the period of his illegal stay outside the military unit, he lived in Moscow, spending time at his own discretion, working on the restoration of buildings and as a driver. On September 30, 2010, Aliyev was detained by police officers.

The Moscow Garrison Military Court found A. M. Aliyev guilty of committing a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation, i.e. in the unauthorized abandonment of a unit or place of service for more than one month.

It seems that in this case, the length of time that the military unit was left behind and the job placement indicated that Aliyev had intent to evade military service. Thus, in his actions the corpus delicti under Art. 338 of the Criminal Code of the Russian Federation, i.e. desertion.

A similar decision was made by the 235th Garrison Military Court of Moscow, which found a soldier, Private Zaitsev, guilty of committing a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation. Before the morning formation on February 20, 2002, Zaitsev left military unit 18938 without permission in order to temporarily take a break from military service and evade his duties. While outside the unit, Zaitsev took a break from service, lived with random acquaintances and spent time at his own discretion. At 2:45 am on February 27, 2011, in the village of Kryukovo, Chekhovsky District, Moscow Region, he was detained by police officers.

Since Zaitsev, being a conscript serviceman, was unauthorizedly absent from the military unit for more than one month, the court qualified his deed under Part 4 of Art. 337 of the Criminal Code of the Russian Federation.

Nevertheless, the abandonment of the military unit for a long period of time (more than 9 years) convincingly indicates that Zaitsev has a goal of evading military service. This is confirmed by the fact that the crime was ended not in connection with the appearance of the guilty person in the military unit, but with the suppression of his criminal act by the police. Consequently, in the deed there are signs of a crime under Art. 338 of the Criminal Code of the Russian Federation.

A similar opinion has already been expressed in the legal literature - a long unauthorized absence from a unit is one of the factors that, together with other circumstances, can serve as evidence of the guilty's desire to desert.

The period of unauthorized absence of a serviceman in the unit (at the place of service) can be considered as a criterion for differentiating the corpus delicti under Part 4 of Art. 337 and Art. 338 of the Criminal Code of the Russian Federation. We believe that, taking into account the currently established term of military service for conscription, which is equal to one year, such a criterion may be the unauthorized absence of a serviceman in a unit or at a place of service for more than one year. We believe that the indicated time period indicates the persistent unwillingness of the serviceman to fulfill the duties of military service, the presence of a goal to completely evade it.

In view of the above, it seems appropriate to supplement the footnote to Art. 337 of the Criminal Code of the Russian Federation with the following clause: "The act provided for by part 4 of this article, lasting more than one year, is subject to qualification under part 1 of article 338 of this Code." At the same time, in the current edition of Art. 337 of the Criminal Code of the Russian Federation, the word "Note" should be replaced with the word "Notes", the text contained in the note shall be considered paragraph 1 of the notes, and the text of the note proposed by us - paragraph 2 of the notes.

Such an addition to the Criminal Code of the Russian Federation will make it possible to legally solve the problem of distinguishing between desertion and long-term unauthorized abandonment of a military unit, and, consequently, to achieve maximum objectivity in qualifying these crimes.

Conclusion

The voluntary fulfillment of the duties of military service, the established procedure for the passage of military service is the duty of every soldier. Violation of this duty under certain conditions may constitute a criminal act. So, according to Article 331 of the Criminal Code, crimes against military service provided for by this chapter are recognized as crimes against the established procedure for performing military service, committed by military personnel who are doing military service by conscription or under a contract in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, as well as citizens who are in reserve during their military training.

The specified group of crimes, due to its specificity, was singled out by the legislator as an independent chapter, thereby forming a system of crimes against military service.

The generic object of crimes included by the legislator in Section XI are public relations governing military service. At the same time, within a generic object, all military crimes can be combined according to their specific object, that is, a specific variety of the general order of service.

The direct objects of crimes against military service are social relations, which form separate elements of the procedure for carrying out and passing military service.

Thus, the classification of crimes against military service has been carried out at the legislative level. It should be noted that in all sciences that, in one way or another, are associated with the consideration, description of existing facts, classification is used in order to systematize them.

Classification is one of the most common methods of legal technology, which allows many studied phenomena in accordance with certain construction rules to be combined into single classification groups. This technique serves as the basis for all types of scientific classifications, including a complex procedure for establishing a cause-and-effect relationship, which link the classification objects.

Thus, by the time the Criminal Code of the Russian Federation came into force in 1996, the criminal liability of servicemen of the Armed Forces, other troops, military formations and bodies of the Russian Federation for evading military service came under Art. 245-249 of the Criminal Code of the RSFSR 1960., which reproduced the corresponding norms of the USSR Law "On Criminal Liability".

In connection with the adoption of the 1996 Criminal Code of the Russian Federation, a number of crimes against the procedure for staying in military service were decriminalized, in particular, unauthorized absence, and criminal penalties for unauthorized abandonment of a unit or place of service were significantly mitigated.

Thus, the formation and development of criminal legislation for evading military service has a complex historical character. At all stages of the formation and development of the Armed Forces, great importance was attached to maintaining an appropriate order of military service, which was largely facilitated by the establishment of criminal liability for socially dangerous violations of the order of military service.

Glossary

		Definition
		a type of criminal punishment imposed by a court verdict and consisting in keeping the convicted person in conditions of strict isolation from society for a period of one to six months.
		represents the internal attitude of a person to his behavior and to its consequences.
	Desertion	unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for the same purposes in service.
		action or inaction prohibited by criminal law.
	Qualification of a crime	the establishment and legal confirmation of the exact correspondence between the signs of the committed act and the signs of the corpus delicti provided for by the criminal law norm.
	Deprivation of liberty	consists in isolating a convicted person from society by sending him to a colony-settlement or placement in an educational colony, a medical correctional institution, a correctional colony of general, strict or special regime, or to a prison.
	Object of the crime	it is a set of social relations protected by criminal law, at which a criminal encroachment is directed, causing or creating a threat of harm to them.
	Objective side of the crime	a set of external signs of criminal behavior that constitute a socially dangerous, unlawful act that is committed at a specific time, in a specific place, in a specific way, with the help of specific tools or means and in a specific situation, and as a result of which socially dangerous consequences occur (or there is a threat such consequences). ...

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