An Inchoate Crime in Criminal Law: Prospects of a Constructionist Approach

The paper considers the possibilities of solving some problems of crime qualification using the juridicalconstructionist approach. The focus of the legal analysis is on the structural features of a specific normative prescription of the criminal law with the peculiarities of the connections between its elements. First, the author shows how the application of different legal structures to similar facts of the case changes the legal assessment of what has been done from a completed crime through an attempt to commit it and to conclusions about the absence of a criminally punishable act. Second, the author discusses the issue of determining not only the moment of the legal completion of the crime, but also the moment of the legal beginning of the crime to find the boundaries between the preparation for the commission of a crime and the attempt to commit it. The author provides his understanding of the legal structure in criminal law, as well as its content. Using the example of judicial normative interpretation and law enforcement practice, the author proves that legal structures can change, despite the fact that the disposition of an article of a Special part of the Criminal Law may remain unchanged. According to the author, the main work on the description and modification of legal structures is carried out by the Supreme Court of the Russian Federation, including its Plenum. The paper demonstrates positive aspects of the constructionist approach in the legal analysis of an unfinished crime, as well as the difficulties that may be caused by it. For clarity, using the analysis of legal structures, the author elucidates approaches to the qualification of attacks on the life of two or more persons, when one victim was killed, and one or more other victims were not killed due to circumstances independent of the will of the perpetrator. In the process of this analysis, the author demonstrates the distinction between attempted murder of two or more persons and preparations for such a crime, and provides his considerations concerning decisions of the courts of appeal of general jurisdiction.

1. Cherdantsev AF. Legal constructions, their role in science and practice. Pravovedenie. 1972;3:12-19. (In Russ.).

2. Iering R. Legal technique. Trans. from German. by Shendorf FS. St. Petersburg; 1905. (In Russ.).

3. Kelsen G. The pure doctrine of law. 2nd ed. Trans. from German by Antonova MV and Lezova SV. St. Petersburg: Alef-Press; 2015. (In Russ.).

4. Kozlov AP. The doctrine of the stages of crime. St. Petersburg: Yuridicheskiy Tsentr-Press; 2002. (In Russ.).

5. Kruglikov LL, Spiridonova OE. Legal constructions and symbols in criminal law. St. Petersburg: Yurudicheskiy Tsenter-Press; 2005. (In Russ.).

6. Kryukov AA, Shikhanov VN. Usingle continued sale of narcotic drugs or psychotropic substances. Criminal Law. 2021;5:10-19. (In Russ.).

7. Nikonov PV, Shikhanov VN. Theory and practice of qualification of official crimes. 2nd ed. St. Petersburg: Yuridicheskiy Tsentr-Press; 2021. (In Russ.).

8. Obrazhiev KV. The system of formal (legal) sources of Russian criminal law. Moscow: Academy of the Prosecutor General’s Office of the Russian Federation; 2015. (In Russ.).

9. Pikurov NI, Obrazhiev KV (eds.). Commentary to the Criminal Code of the Russian Federation: in 3 vols. Vol. 3. 3rd ed. Moscow: Prospekt Publ.; 2023. (In Russ.).

10. Sklyarov SV. Qualification of several intentional crimes as a single act. Criminal Law. 2021;11:29-34. (In Russ.).

11. Sklyarov SV. Qualification of the murder of two or more persons. Bulletin of the Academy of the Prosecutor General’s Office of the Russian Federation. 2012;6(32):32-35. (In Russ.).

12. The Complete Course of Criminal Law: in 5 vols. Vol. 2: Gorelik AS, et al. Korobeev AI (ed.). Crimes against the person. St. Petersburg: Yurudicheskiy Tsenter-Press; 2008. (In Russ.).

13. Volzhenkin BV. Official crimes: A commentary on legislation and judicial practice. St. Petersburg: Law CenterPress; 2005. (In Russ.).

14. Yani PS. Elimination of gaps in criminal law regulation by decisions of the Supreme Court. Gaps in Russian Legislation. 2008;1:258-259. (In Russ.).

15. Yani PS. Problems of understanding complicity in judicial practice. Zakonnost. 2013;8(946):24-28. (In Russ.).