Optional features of the objective side in crimes against life and health under the legislation of some countries of the Romano-Germanic legal family (using the example of Germany and France)

Sogomonov Dmitrii Karenovich Postgraduate student, Department of Criminal Law and Criminology, Kuban State University 350000, Russia, Krasnodar Territory, Krasnodar, Stavropol str., 149 dmitri009@mail.ru

The legal aspects related to the criminal law assessment of optional features of the objective side in the composition of crimes against life and health have their own problems, which is emphasized by a large number of fundamental works ^{[1, 2, 3, 4, 5, 6, 7]}, as well as judicial practice.

Currently, in most legal states of the world, the most significant relations, including those related to the protection of life and health, are protected by criminal law ^{[8, p. 207]}. Therefore, the study of almost any phenomenon in criminal law requires understanding the experience of foreign countries. According to N.N. Tarasov, conducting a comparative analysis today is one of the conditions for scientific correctness ^{[9, p. 7]}, it acts as an integral element of the system of legal thinking, making the study reliable and justified. In addition, the deliberate and selective consideration by the Russian legislator of foreign experience can contribute to the optimal resolution of a whole range of problems, including those in domestic criminal law theory and practice ^{[10, p. 79]}.

The comparative analysis of the legislation of the countries of the Romano-German legal family, conducted in the specialized literature, usually boils down to the study and comparison of the criminal law of Germany and France. This approach seems logical and traditional, since it is in these countries that there is a long history of legislation formation. In addition, it should be noted that the laws of Germany and France are the closest to the domestic one due to the fact that they are all based on the reception of Roman law and are united by common structures, sources and similarity of the conceptual and legal apparatus.

The relevance of the topic of the work is confirmed by the fact that, within the framework of scientific understanding, scientists did not conduct research on optional signs of an objective side in crimes against life and health under the laws of Germany and France.

The Criminal Code of the Federal Republic of Germany (hereinafter referred to as the Criminal Code of the Federal Republic of Germany) resembles the codified criminal legislation of the RSFSR in its structure, since its Special part is "opened" by crimes against peace and the state. Sections 16 and 17 of the Criminal Code of Germany are devoted to responsibility for crimes against life and health.

Section 211 of the Criminal Code of the Federal Republic of Germany contains provisions regulating responsibility for murder. Based on the analysis of the scientific works of German lawyers, it can be concluded that the signs of qualified homicide in the German criminal law doctrine are conditionally divided into two groups ^{[11, 12, 13]}. The circumstances forming the first of them characterize the subjective side of the crime, the signs of the second type are by their nature objective and characterize the ways and means of committing a crime.

It is noteworthy that all the qualifying signs characterizing both objective and subjective circumstances are located in the second part of the above paragraph. Optional signs of the objective side of murder in the Criminal Code of Germany are similar to domestic ones, they include: brutal murder and committed by a means dangerous to society.

The privileged types of this act include the less serious case of manslaughter (§ 213 – Minder schwerer Fall des Totschlags) and murder on request (§ 216 – T?tung auf Verlangen).

The first of these types is an analogue of murder in a state of passion. § 213 of the Criminal Code of the Federal Republic of Germany contains an indication of such objective signs as an insult inflicted by the victim to the subject of the crime or his relative; grave offense on the part of the deceased. § 216 of the Criminal Code of the Federal Republic of Germany also includes the studied signs, which include the requirement of being deprived of life.

In the judicial practice of the Federal Republic of Germany, it is indicated that in order to qualify under Section 213 of the Code, an insult or insult caused by the victim should not be caused by the precriminal behavior of the subject of the crime ^[15]. Such a "remark" is relevant for the domestic legislator. Indeed, the subject of the crime may himself provoke the negative behavior of the victim, which subsequently forms an affected state.

In view of this, it seems possible to provide a qualifying feature in Articles 107 and 113 of the Criminal Code of the Russian Federation, indicating the behavior of the subject of the crime before the occurrence of a state of sudden strong emotional excitement.

There are indications of other optional signs of an objective side in the legislation of the Federal Republic of Germany. § 224 of the Criminal Code of the Federal Republic of Germany regulates the punishability of dangerous bodily harm. Responsibility for such an act occurs, including if it is committed through the use of poison or other harmful substances; with the use of weapons or other dangerous tools; from an ambush; with the help of life-threatening treatment.

Unlike the domestic law, the Criminal Code of Germany regulates responsibility for participation in a fight. § 231 of the Criminal Code of the Federal Republic of Germany establishes that liability occurs if, as a result of a fight, the victim died or serious harm was caused or bodily injuries were inflicted, specified in § 226 of the Criminal Code of the Federal Republic of Germany.

Of particular interest is the regulation in the Criminal Code of Germany of responsibility for abortion. For example, section 218c of the Code criminalizes medical misconduct in the event of an abortion. The objective side of the said act includes: the failure to provide a pregnant woman with medical advice on the importance of the procedure; the absence of a preliminary determination of the duration of pregnancy on the basis of a medical examination.

According to § 218a of the Criminal Code of Germany, abortion is legal if it is performed within 20 weeks from the moment of conception. The exception to the violation of this period is a serious deterioration in the physical or mental health of a pregnant woman.

In Russia, artificial termination of pregnancy is regulated by Article 56 of Federal Law No. 323-FZ dated 11/21/2011 "On the Basics of protecting the health of Citizens in the Russian Federation" and the provisions of the Order of the Ministry of Health of the Russian Federation dated 10/20/2020 No. 1130n "On approval of the Procedure for providing medical care in the field of obstetrics and gynecology". According to paragraph 4 of Article 56 of the said law, artificial termination of pregnancy for social reasons is carried out with a pregnancy period of up to 22 weeks, and in the presence of medical indications – regardless of the duration of pregnancy.

It seems that in order to improve the demographic situation and increase the level of protection of the right to life, criminalization of the act related to termination of pregnancy is required, by analogy with the provisions of the Criminal Code of Germany.

In view of this, it seems possible to add to Article 123 of the Criminal Code of the Russian Federation a qualifying feature related to the timing of artificial termination of pregnancy. The wording of such a sign may look like this: "Performing an artificial termination of pregnancy without medical indications by a person with a higher medical education of the appropriate profile, with a pregnancy period exceeding twenty-two weeks."

Regarding the criminal legislation of France, we note that book II of the French Criminal Code (hereinafter referred to as the French Criminal Code) establishes responsibility for crimes against human beings, contains, among other things, chapter I "Crimes against human life", chapter I bis "Crimes against human life committed as a result of enforced disappearances" and chapter II "Encroachments the physical or psychological integrity of the individual."

The qualifying circumstances containing an indication of optional signs of the objective side of the crime, the French Criminal Code includes: from an ambush (Article 221-3); against a person because of his refusal to marry or enter into an alliance (part 10 of Article 221-4).

There is an indication of the means of committing a crime in the regulation of liability for an attempt on life in article 221-5 of the Criminal Code of France, which include substances that cause death.

Article 221-5-1 of the French Criminal Code provides for responsibility for organizing a murder, which is similar in nature to murder for hire, responsibility for which is provided for in paragraph "z" of Part 2 of Article 105 of the Criminal Code of the Russian Federation, but differs in a special way.

We consider the experience of France to be positive and, from the perspective of preventing criminal acts against life, we propose to supplement the Criminal Code of the Russian Federation Article 108.1, regulating responsibility for hiring for murder, and set it out in the following wording:

"Article 108.1. Hiring to commit murder

Hiring a person by persuasion, offers, bribery, deception or in any other way for the purpose of committing murder in the absence of the intention of this person to commit it ...".

The proposed arrangement of the said norm is due to the fact that such an act is less dangerous than privileged murders, but more serious than causing death by negligence. In addition, its object is identical to the object of crimes for which responsibility is established 105-1102 of the Criminal Code of the Russian Federation.

Chapter II ("Attacks on the physical or psychological integrity of the person") The French Criminal Code includes section 1 "Attacks on the inviolability of the person", which contains three paragraphs: "Torture and acts of aggression (des tortures et actes de barbarie (articles 222-1 ? 222-6-4))", "Violence" (des violences (articles 222-7 ? 222-16-3)); "Threats" (des menaces (articles 222-17 (222-18-3)).

As can be seen from the titles of the paragraphs, the French Criminal Code establishes independent responsibility for torture. The qualifying signs of the objective side of torture include the commission of an act from ambush and with the use or threat of use of weapons.

Violence in the Criminal Code of France is intentional harm to health. Optional signs of the objective side of such acts include the commission of an act from ambush (part 9 of articles 222-8; 222-10; 222-12; 222-13); with the use or threat of use of weapons (part 10 of articles 222-8; 222-10; 222-12; 222-13); in educational institutions or in administration premises, as well as when students or the public enter or exit, or at a time very close to them, near these institutions or premises (part 11 articles 222-12; 222-13); in passenger transport or in a place designated for access to passenger transport (part 13 articles 222-12; 222-13).

The French Criminal Code, when regulating liability for crimes against health, gives a legal definition of an ambush, which means the fact of waiting at a certain time and in a certain place for a person against whom a crime has been committed or an encroachment on him (Article 222-15-1 of the French Criminal Code).

Summing up the analysis of the construction of optional features of the objective side in the composition of crimes against life and health in the legislation of Germany and France, the following conclusions can be drawn.

1. It is proved that the legislators of Germany and France, unlike the Russian one, do not attach serious importance to the optional signs of the objective side when constructing the elements of crimes against life and health. This conclusion is confirmed by a comparison of the Criminal Code of Germany, the Criminal Code of France and the Criminal Code of the Russian Federation.

2. At the same time, certain features in the regulation of optional features of the objective side in the composition of crimes against life and health, which are not peculiar to domestic law, have nevertheless been found. These features include:

- in Germany, in relation to murder in a state of passion, not only the determinants of the occurrence of a state of strong emotional excitement are taken into account, but also the precriminal behavior of the subject of the crime;

- The German Criminal Code regulates responsibility for participation in a fight; it regulates responsibility for abortion, which is performed outside the prescribed period of pregnancy, at which it is possible.

- the Criminal Code of France criminalizes hiring to commit murder if the mercenary did not plan to commit a criminal act.

3. In order to improve domestic legislation, taking into account the studied experience, the following changes can be proposed:

– following the example of the legislation of the Federal Republic of Germany, it seems possible to provide in Articles 107 and 113 of the Criminal Code of the Russian Federation a qualifying sign indicating the behavior of the subject of the crime before the occurrence of a state of sudden strong emotional excitement (affect);

– by analogy with the Criminal Code of Germany, it is proposed to supplement Article 123 of the Criminal Code of the Russian Federation with a qualifying sign related to the timing of artificial termination of pregnancy. Its wording may look like this: "Performing an artificial termination of pregnancy without medical indications by a person with a higher medical education of the appropriate profile, with a pregnancy period exceeding 22 weeks";

– taking into account the legislative experience of France, it seems possible to supplement the Criminal Code of the Russian Federation Article 108.1, which establishes liability for hiring for murder.