Lobanova L.V., Rozhnov A.P. Objective and Subjective in Social Danger of Crime
DOI: https://doi.org/10.15688/lp.jvolsu.2018.4.6
Lyubov V. Lobanova
Doctor of Sciences (Law), Professor, Head of the Department of Criminal Law, Volgograd State University
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,
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Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation
Alexey P. Rozhnov
Candidate of Sciences (Law), Associate Professor, Associate Professor of the Department of Criminal Law, Volgograd State University
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Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation
Abstract. Social danger as a sign of crime was traditionally included in its definition in the Soviet criminal laws and is also mentioned in Part 1 of Article 14 of the current version of Criminal Code. However, with considerable attention to legal science, paid to the knowledge of this phenomenon, the social danger is not a fully studied phenomenon. Thus, the dialectic of the relation between the objective and the subjective in the social danger did not receive a uniform resolution. Social danger is the characteristic of human behavior, assessed by other people through their perceptions of the dangerous and useful, and it leaves its mark when applying the categories of objective and subjective. Being a subjective reality according to the source of its origin (man) and the product of human consciousness, social danger, however, exists objectively - in supra-individual forms and connections that form a society in the system. Hence the social danger is a special kind of objectively subjective phenomenon. The objectivity of public danger is also indicated by the fact that it is the subject of the cognitive activity of the legislator and can exist outside the legal field, without prohibiting the corresponding type of behavior in the law. The subjective properties are growing in social danger through the knowledge of the public danger of an act by the subjects united by the collective notion "legislator". Moreover, subjectivity increases as a result of mistakes made by the legislator,it's a kind of lawmaking "negligence". Acts reflected in criminal law are not always socially harmful from the point of view of the whole society. There are also prohibitions that protect purely class and group interests, which also expand the scope of the subjective in the analyzed phenomenon. The Law initially arose to protect people from themselves, as a condition of their reproduction. At the same time, even with the human development, this mission of the law still exists, and there is always a certain proportion of "eternal crimes" in the law, which is prohibited to commit in order to protect fundamental human values (life, health, sexual freedom and integrity, property). However, in the criminal law of any society there is a so-called "variable part", where prohibitions declare certain actions to be socially dangerous only at a certain stage of the state's historical development. The combination of "eternal" and "variable" crimes in criminal law also indicates the objectively subjective nature of the phenomenon of public danger.
Key words: crime; public danger, material evidence of a crime, dialectic of objective and subjective, right, legal consciousness, society, legislator.
Objective and Subjective in Social Danger of Crime by Lobanova L.V., Rozhnov A.P. is licensed under a Creative Commons Attribution 4.0 International License.
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