Criminal legal analysis of the murder the mother of a newborn baby. Features qualification

Article 20 of the Russian Constitution proclaims, "everyone has the right to life.” and paragraph 2 of Article 17 of the Russian Constitution states that "the fundamental rights and freedoms are not alienable and belong to him from birth." Giving priority to the special part of the Criminal Code of crimes against the life, the legislator proceeded from the fact that these articles dealing with the protection of critical natural human rights. The relevance of this article is the fact that, according to scientific studies annually in Russia is committed to 300 of infanticide.

The Criminal Code has allocated this socially dangerous act as a separate and carried it to the so-called 'privileged murder. The specifics of the murder of the mother of a newborn child caused by a special mental and physical health of women during childbirth or immediately after them, which weakens its ability to fully realize actual nature and social danger of his actions (inaction) or supervise over them, which is a constructive sign of this composition. Therefore, the killing of the mother of a newborn child as a crime with a special subject. The objective aspect of art. 106 of the Criminal Code is expressed in one of three actions:

- The murder of the mother of a newborn child during or immediately after birth

- The murder of the mother of a newborn baby in a psychologically traumatic situation;

- The murder of the mother of a newborn child in a state of mental disorder not excluding sanity.

This legislative definition of infanticide in practice has caused many problems related to the qualification of the offense, many of which remain unsolved. The question, therefore, is merely to identify a threshold beyond which the intentional deprivation of life, which was born a baby (as the preferred composition), becomes the ordinary (simple or qualified) murder.

To solve these problems, you should pay attention to some gaps and conflicts that hinder the use of criminal law:

1. This is the problem of defining period of action of such concepts as "during childbirth", "immediately after birth", and the concept of "newborn".[1] Therefore, Radchenko considered that the murder during childbirth means that the fruit has already begun to be born, but not fully separated from the mother. Other scientists determined "during labor," as the time of occurrence of any part of the body of the mother's body.[2]

Infanticide "when" or "immediately after birth" is not bound by the legislator with any particular psychological state of pregnant woman. One can only assume that the legislature had in mind was a condition of the mother-killer, but in the disposition rules, his thoughts clearly expressed. The ambiguity of the criminal law creates situations that jurisprudence to a standstill. The object of the crime is a nascent human life.

Deliberately depriving the mother of a child's life, not belonging to the category of infants, will not be regarded as committing a privileged murder, responsibility for which is provided Art. 106 of the Criminal Code. With regard to the concept of "newborn", the medical and legal criteria are not the same. In forensic medicine, the neonatal period is assumed one day in obstetrics - one week. In practice, in the investigation of these crimes the criterion specified time pediatrician who is one month.

It is clear that such a blurred boundaries determine the age of the victim makes it difficult to use the criminal law. I consider it necessary to seek clarification of the Supreme Court on this issue, which would solve many of the complexities involved in the qualification of the crime.

2. So protection of the rights and freedoms of man and citizen as one of the main tasks of the Criminal Code does not provide for protection of the embryo. Therefore, at the beginning of the life of the Criminal Code it is the moment of the beginning of physiological childbirth. Under genera understood - complex physiological process of terminating the pregnancy, which occurs at the beginning of rhythmic uterine contractions and ends with separation of the placenta from the uterine wall and the expulsion of the fetus through the birth canal. That is the only entity recognized a newborn child.

Based on the letter of the law, the state provides for and protects the "right to life" been born human. Then, what if the person is not born, but is at the stage of embryonic development, and is about to be born? How to protect the embryo as a future potential person? This can be done by providing and protecting the embryo at the legislative level as the beginning of human life. Under the embryo is commonly understood as the living organism in the early stages of development. For the protection of the embryo state, and adhere to such authors as Petrov, Pavlenko, Galichenko, Popov, and others. Our legislation does not provide for the fetus as it is subject to the law. The legislation of the majority of foreign countries is more or less determine the status of the human embryo (Ireland, Czech Republic, Germany, England, some US states and most of the Arab States[3]). Thus, Article 40 of the Irish Constitution declares, "The State acknowledges the right to life of the unborn." Slovak Constitution in Article 15 enshrines the "human life is worthy of protection even before birth." In Australia, there is a principle according to which the embryo has the right to sue for damages caused to it by negligence during its internal development. California law establishes responsibility for the killing of embryos, and so forth.

In addition, the embryo is regarded as a full subject in international legal instruments. For example Declaration of the Rights of the Child adopted by the UN General Assembly of 20 November 1959, he emphasizes the "child in mind his physical and mental maturity not, needs special safeguards and care, including appropriate legal protection, before as well as after birth." Similar language is found and the Convention on the Rights of the Child 1989. This means that the international legal instruments aimed at establishing obligations for adequate protection of the embryo.

However, the preconditions of criminal legal protection of the embryo in the criminal law already exists. Thus, the legislator distinguishes such indicia of the offense, as they are committed against a pregnant woman, that is, as a result of such crimes inflicted harm "is actually" two persons - mother and child. This is the opinion and S.V.Borodin[4].

Other examples of legislative consolidation of the embryo as a subject of rights can be found in other areas of law. So st.1116 Civil Code, according to which the number of persons, who may be called upon to inherit, include citizens, conceived during the testator's lifetime but born alive after the opening of the inheritance.

In this connection, I would like the legislator provided for in article 106 of the Criminal Code as a victim of not only a newborn baby, but also the embryo after 22 weeks of fetal development. Currently the development of the embryo is chosen not by chance. Firstly, at this stage, the embryo becomes a human form and becomes viable. Second, abortion later could threaten the health of the woman. In legal literature, it was of the same opinion that the attempt on the life of a child in the womb, gestation over 22 weeks should be recognized as murder[5].

3. Criminal responsibility under Article 106 of the mother of the Criminal Code comes on reaching her 16th birthday. The legislator is likely explained by the fact that the mother of a newborn baby in 14 years may not be aware of all the responsibility and the very essence of motherhood. The legislator is likely explained by the fact that the mother of a newborn baby in 14 years may not be aware of all the responsibility and the very essence of motherhood. However, I would not agree with the position of the legislator, as it increases the tendency of motherhood young mothers: 13, 14, 15 years, due to more rapid puberty and early onset of sexual activity. The problem here arises with the very subject of the crime. A feature of this offense is that it can only be the subject of the child's mother. Other persons who may be complicit in the crime, responsible for h. 2 tablespoons. 105 of the Criminal Code. However, the partners of art. Hold 105 of the Criminal Code criminally responsible from the age of 14. Then, in my opinion, to identify gaps legislation. For example, if the instigator (eg, the child's father) 15 years (remember the age at which criminal liability under Art. 105 of the Criminal Code of the Russian Federation, 14 years) declines in the murder of the child's mother, who is also 15 years old - is the basis of the letter law it appears that the instigator is responsible for a particularly serious crime under Part 2 of Art. 105 and the mother is not subject to criminal liability. I think that is violated the principle of fairness enshrined in Article 6 of the Criminal Code, which states that the penalty to be applied to a person who committed a crime should be fair, that is, appropriate to the nature and degree of social danger of the crime. That is the basis of the logical interpretation of the degree of social danger of the act-committed instigator exceeds similar severity to acts performed by the mother of the newborn. In this regard, I propose to add Part 2 of Art. 20 of the Criminal Code Article 106 of the Criminal Code.

4. Also, difficulties arise when qualifying in the case of the murder of the mother of a newborn child during birth or after birth, if the mother before birth in advance, preparing to murder, wanting to get rid of the child. This may be caused by the fact that the mother does not want to harm their health, through abortion, and waits for the child to be born to get rid of him. In this case, the mother should be liable to attack by Part 2 of Article 105 of the Criminal Code. Such scholars share this opinion as A. Krasikov, SV Borodin and others. Other scientists (Stashis, Lopashenko) hold a different view. Thus, for example, Stashis indicates that the time of the intent to kill the newborn child to qualify for the murder is not affected. Responsibility for the murder of the mother of a newborn baby comes, and when the intent that arose even before birth, and was carried out during the descent process or immediately after it[6].

5.Also is not a big omission of the legislator, which is not foreseen in the disposition of article 106 strength- murder the mother of 2 whether a newborn child as a qualifying feature, and does not involve the responsibility of claim. "And" h. 2 tablespoons. 105 of the Criminal Code (murder of two or more persons). In this case, there is competition privileged and qualified offenses and subject to the application of the rule providing for responsibility for the preferred form of murder, Art. 106 of the Criminal Code. I propose to supplement the art. 106 Criminal Code of the second part - the murder of the mother of 2 whether a newborn child during birth or soon after.

6. Discussion in the criminal law doctrine is the question of the possibility of criminal liability under Art. 106 of the Criminal Code so-called "surrogate mother", i.e. female donor, whose conception is produced by implantation of a fertilized egg of her body. According to AN Krasikov, qualification actions this woman-killer article. 106 of the Criminal Code is hardly possible. I would like to disagree with this opinion, because the disposition of Art. 106 of the Criminal Code says nothing about the murder of the mother of a newborn child (as is the case, for example, in Art. 96 of the Criminal Code of Ukraine), so a surrogate mother could be the subject of the crime.

In conclusion, I would say that is not eliminated the above-mentioned problems, issues of qualification of Article 106 of the Criminal Code remain unsolved.

[1] Commentary on the Criminal Code. / Ed. V.I. Radchenko M.2008

[2] Criminal law. The special part. / Ed. Ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M.2000. P.37.

[3] Constitution states in Europe in 3 t.M.2001

[4] Borodin S.V. Crimes against life. M.2003. p.103

[5] Sharapov R.D. Physical abuse in the criminal law. St. Petersburg, 2001. P.187.

[6] Stashis V.V. Bazhanov M.I. Criminal-law protection of the individual. Harkov.1976.S.63.

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