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ISSUES OF QUALIFYING AND DISTINGUISHING THE CRIME OF
SPREADING A STD OR HIV/AIDS DISEASE FROM SIMILAR CRIMES
Khaydarov Shukhratjon Jumaevich
Professor of Department of Criminal law, Criminology
and Anti-corruption of Tashkent State University of Law
Doctor of Philosophy in Law (PhD),
https://orcid.org/0000-0002-8188-7410
E-mail: Xaydarovshuxrat@mail.ru
https://doi.org/10.5281/zenodo.13959913
Annotation:
This article describes the issues of qualifying the crime of
sexually transmitted disease or spreading HIV/AIDS and distinguishing it from
similar crimes. In particular, the article scientifically analyzes the different
aspects of the crime of sexually transmitted disease or spreading HIV/AIDS from
similar crimes, i.e. Article 116 of the Criminal Code. In addition, in the article, if
sexually transmitted disease or HIV/AIDS infection occurs as a result of touching
the honor, in such cases, the criminal's actions are qualified by Articles 113 and
118 of the Criminal Code, that is, as a set of crimes. Also, the article presents
reasonable conclusions on the issues of qualification and differentiation of the
crime of spreading the sexually transmitted disease or HIV/AIDS from similar
crimes.
Keywords:
profession, responsibility, crime, disease, act, norm, HIV, AIDS,
infection, qualification, law.
There is competition between the crime of spreading sexually transmitted
disease or HIV/AIDS and many norms in the Special Part of the Criminal Code.
"Competition of special norms exists in the relationship between two or more
special norms, one of which is not considered the type and special appearance of
the other, and which, in turn, have similar characteristics" [1]. For this reason, in
practice, some problems can be encountered in the qualification of a special act.
When qualifying any act, it is required to identify its distinguishing features
from similar crimes, comprehensive analysis of the crime structure, and to
determine the features characteristic of its structural elements [2].
When it comes to distinguishing the crime of spreading venereal disease or
HIV/AIDS from related crimes, first of all, it is necessary to distinguish the fifth
part of Article 113 of the Criminal Code and Article 116 of the Criminal Code.
The main reason why this case is not considered as "other serious
consequences" in paragraph "b" of the fourth part of Article 116 of the Criminal
Code is based on its high level of social danger.
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Article 113 of the Civil Code should be distinguished from violation of
sanitary legislation or the rules of fighting against epidemics (Article 257
1
of the
Civil Code).
In this case, the objective part of Article 257
1
of the Criminal Code is that
certain actions of violating the sanitary legislation or the rules of fighting against
epidemics are defined in Article 257
1
of the Criminal Code, and these actions do
not directly conflict with the norms of Article 113 of the Criminal Code.
At the same time, Article 257
1
of the Civil Code defines these actions as
"including", which means that it is a crime to violate the sanitary legislation or
the rules of epidemic control in any way, if it causes public illness or poisoning of
people, or if it creates such a real danger.
When distinguishing between these crimes, it should be taken into account
that the violation of the sanitary legislation or the rules of epidemic control often
acquires a mass character, the victims are many at the same time, and the
method of committing the crime is also different from each other.
In particular, violation of sanitary legislation or anti-epidemic rules is used,
for example, in cases where a virus or infection spreads as a result of not taking
the necessary precautions specified in sanitary legislation or anti-epidemic rules
when working with various infectious virus and infection strains.
Article 113 of the Criminal Code means that a person, knowing that he has a
disease, infects another person, including, in most cases, sexually or in
connection with the performance of professional duties.
In many cases, the subject of violation of sanitary legislation or the rules of
epidemic control is also a special subject, and in Article 113 of the Criminal Code,
a carrier of genital or HIV (AIDS) infection can also be a subject of crime.
At the same time, Article 113 of the Civil Code establishes criminal
responsibility only for sexually transmitted or spreading HIV (AIDS) infection,
while Article 257
1
of the Civil Code provides for any disease that can cause mass
disease of people.
Transmission of venereal disease or HIV/AIDS can also occur as a result of
indecency, and in such cases, the actions of the criminal are qualified as a set of
crimes under Articles 113 and 118 of the Criminal Code.
In particular, it showed that article 113 of the Criminal Code comes
together with articles 118, 119 and 120 of the Criminal Code.
When a person infects another person with HIV/AIDS as a result of his/her
failure to fulfill his/her professional duties, the act is qualified not by Article 116
of the Civil Code, but by the fifth part of Article 113 of the Civil Code.
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According to the Law of the Republic of Uzbekistan dated May 24, 2010 [3],
a new fifth part was included in Article 113 of the Criminal Code. According to it,
a person is liable for infecting another person with HIV disease/AIDS due to
failure to perform or improper performance of his/her professional duties.
The main reason why the above situation is not considered as "other
serious consequences" in paragraph "b" of the fourth part of Article 116 of the
Criminal Code is based on its high level of social danger, the formation of
practice in this regard and, most importantly, the fact that it provides an
opportunity to correctly solve the problem in competition with the norms of the
Special Part of the Criminal Law.
In most foreign countries (Russia, Armenia, Kazakhstan, Belarus, and other
republics), the article "Non-fulfilment of professional duties of medical
personnel" includes HIV/AIDS infection by medical personnel as an aggravating
factor.
Article 116 of the Civil Code, "Professional failure or improper performance
of duties" in Part 2 of the article "Infecting another person with HIV/AIDS as a
result of professional failure or improper performance of a person's duties" and
Part 3 "transmission of HIV disease / AIDS to two or more persons as a result of
a person's failure to perform or improperly perform his duties related to his
profession" according to.
Also, for medical workers, who are direct special subjects, Article 1161 of
the Civil Code "Failure to fulfill their professional duties by medical personnel"
in Part 2 of the article "Infecting another person with HIV disease / AIDS as a
result of a person's failure to perform his professional duties or improperly
performing them" and It is appropriate to include the clauses " transmission of
HIV disease / AIDS to two or more persons as a result of a person's failure to
perform or improperly perform his duties related to his profession" in the 3rd
part.
The amendment of the law in this version and the introduction of the
supplement would have served to prevent negative situations like the above.
The following conclusions can be put forward regarding the qualification of
the crime of spreading a sexually transmitted disease or HIV/AIDS and
distinguishing it from similar crimes:
1. In Article 1161, it is appropriate to add "Infecting another person with
HIV disease/AIDS as a result of a person's failure to perform or improperly
perform his duties" and to remove Article 113, Part 5 of the Civil Code from the
Civil Code;
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2. Article 113 of the Civil Code, it is understood that a person, knowing that
he has a disease, infects another person, including, in most cases, sexually or in
connection with the performance of professional duties;
3. While Article 113 of the Civil Code establishes criminal liability only for
sexually transmitted or HIV (AIDS) infection, Article 2571 of the Civil Code
provides for any disease that can cause mass disease of people;
4. If sexually transmitted disease or HIV/AIDS infection occurs as a result of
touching the honor, in such cases, the actions of the criminal are qualified as a
set of crimes under Articles 113 and 118 of the Criminal Code;
5. When a person infects another person with HIV/AIDS as a result of
his/her failure to fulfill his/her professional duties, the act is qualified not by
Article 116 of the Civil Code, but by the fifth part of Article 113 of the Civil Code;
6. Article 116 of the Civil Code "failure to perform or improperly perform
one's duty in the field of profession" is included in part 2 of the article "infecting
another person with HIV disease / AIDS as a result of a person's failure to
perform or improper performance of one's duty in the field of profession" and
part 3 "infecting a person in the field of his profession" it is appropriate to
include the clauses "transmission of HIV disease / AIDS to two or more persons
as a result of a person's failure to perform or improperly perform his duties
related to his profession";
7. Article 1161 of the Civil Code, which is proposed for medical workers
who are direct special subjects, "Failure of medical personnel to perform their
duties due to their profession", part 2 of the article "infecting another person
with HIV disease / AIDS as a result of a person's failure to perform his duties due
to his profession or improper performance" and it is appropriate to include the
clauses " transmission of HIV disease / AIDS to two or more persons as a result
of a person's failure to perform or improperly perform his duties related to his
profession" in part 3.
References:
1.
Nayimov S.S. Theoretical and practical issues of qualifying the crime in
competition of criminal-legal norms: Jurid. science. name ... diss. - Tashkent:
TDYuI, 2007. - B. 85.
2.
Kabulov R., Yakubov A.S., Ilkhamov A.N. Qualification of crimes. Methodical
material. - Tashkent: MIA Academy of the Republic of Uzbekistan, 2001. - 24 p.;
Kabulov R. Ponyatie i znachenie sostava prestupleniya po ugolovnomu pravu
Respubliki Uzbekistan // Huquq-Pravo-Law. - Tashkent, 2002. - No. 5. - S. 25-
26.; Irkakhodjaev A.K., Kholikulov U.Sh. Scientific basis of qualification of crimes.
Study guide. - Tashkent: TDYuI, 2007. - 59 p.
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3.
Collection of legal documents of the Republic of Uzbekistan, 2010, No. 21,
Article 161
