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A
BSTRACT
In this article, the logical, systematic, logical-legal, comparative-legal methods of research are widely used.
In particular, the formation of the doctrine of the crime compound and its stages of historical development
are described in detail. Including, first of all, the most Continental (Romano-Germanic) and Anglo-Saxon
(Common) from large law families the objective side of the crime structure in the doctrine of criminal law
existing in the family of law and The concept of "actus reus" is scientific about them by the scholars of each
family of law views, studies, similarities and differences between them described in detail. Also, the
objective aspect of the crime and "actus reus" concept has been analyzed in comparative law and the
problematic aspects in them are sequential described. In this article, the main focus is on the objective
aspect of the composition of the crime advantages of signs and "actus reus-mens" in criminal law in the
Anglo-Saxon legal family rea" on the "corpus delicti" (composition of the crime) consisting of a criminal act
aspects related to the shortcomings of the theory are both theoretically and practically justified. At the
same time, criminal law exists in the Anglo-Saxon (common) law family scientists in the doctrine J.Austin,
M.Moore, D. Husak, J.Fletcher, H.Morris, M.Gore, A.Enker, W.Blackstone, G.Williams and Russian belonging
to the continental (Romano-Germanic) family of law scientists A.N.Trainin, N.F.Kuznetsova, V.N.
Kudryavtsev, D.M.Molchanov and others, as well as national scientists A.S.Yakubov, M.Kh.Rustamboev,
Journal
Website:
http://sciencebring.co
m/index.php/ijasr
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Research Article
THE OBJECTIVE SIDE OF CRIME AND THE ACTUS REUS
CONCEPT: COMPARATIVE-LEGAL ANALYSIS, PROBLEMS AND
PROPOSALS
Submission Date:
December 08, 2022,
Accepted Date:
December 13, 2022,
Published Date:
December 18, 2022
Crossref doi:
https://doi.org/10.37547/ijasr-02-12-15
F.Kh.Khudaykulov
Phd In Law, Associate Professor, Department Of Criminal Law, Criminology And Anticorruption, Tashkent
State University Law, Uzbekistan
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S.S.Nayimov, M.Usmonaliev and Scientific works of P.Bakunovlar and others were used. At the same time,
continental (Romano-Germanic) and Anglo-Saxon (common) law countries are crimes analyzed the
criminal legislation of the Republic of Uzbekistan in this regard specific proposals and recommendations
for improvement have been developed.
K
EYWORDS
Crime, objective side of crime, corpus delicti, actus reus, mens rea, social dangerous act, socially dangerous
consequence, causal connection, criminal behavior, desire, understanding.
I
NTRODUCTION
A culpable socially dangerous act (action or
inaction) prohibited by this Code on pain of
imposing of a penalty shall be recognized as a
crime. The definition given to the concept of crime
in the existing criminal law doctrine and
legislation in the continental (Romano-Germanic)
and Anglo-Saxon legal families is different.
In particular, in the doctrine of criminal law
existing in the continental (Romano-Germanic)
family of law, an act with four necessary signs, i.e.,
social danger, illegality, guilty and punishability,
is considered a criminal act. An act that causes
damage to objects protected by the criminal law
or creates a real risk of damage is considered a
socially dangerous act. In the criminal law, the
legislator expresses the socially dangerous act
along with its signs and determines the
punishment. As a result, the criminal act is
prohibited by the threat of punishment in the
criminal law. The crime and its signs are
represented by the element called the objective
side of the crime structure. The objective side of
the crime structure and its signs first of all
represent the sign of social danger of the crime,
and the legislator reflects this socially dangerous
act in the criminal law and assumes its illegality,
guilty and punishment.
In the doctrine of criminal law in the Anglo-Saxon
legal family, there is no single definition of the
concept of crime. According to the theory of
criminal law existing in this family, a criminal act
is considered a crime based on the concept of
"actus reus-mens rea". Corpus delicti, which has
its roots in Roman law, consists of basic elements
such as actus reus and mens rea. "Mens rea"
means "a guilty mind" in Latin, and is a subjective
element of "corpus delicti" and refers to the
mental attitude towards the committed criminal
act. "Actus reus" means "guilty act" in Latin and is
an objective element of "corpus delicti" and is the
external aspect of the crime, such as the
committed criminal act, its criminal consequence,
the causal connection between the criminal act
and the consequence. represents the side.
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In the continental (Romano-Germanic) family of
law, the theoretical understanding of material
and formal types of crime has not yet appeared,
but the concept of "criminal structure" has a long
history. The first ideas about this legal category
appeared at the end of the 19th century and the
beginning of the 20th century. However, the
views on the structure of crime at that time were
very different from today's views. For example, it
considered the composition of the crime as the
presence of the fact of the commission of a crime
(dead div, traces of breaking into the building,
etc.) [1, P. 41].
It is appropriate to conduct a comparative
analysis of the concepts of the objective side of the
crime and "actus reus" by studying their
similarities and differences. Because in the
criminal law doctrines and scientific studies of the
two families of law that we mentioned above,
there are scientifically controversial and
problematic cases about the objective side of the
criminal structure and "actus reus", which
represents the external side of the crime.
In the theory and practice of criminal law of the
Anglo-Saxon legal family, the existence of a
criminal act based on "actus reus-mens rea" is the
basis for the emergence of criminal responsibility.
It is known that, in contrast to the continental
(Roman-Germanic) family of law, the structure of
the crime in the family of common law is two-
element. The composition of the crime consists of
a criminal act (actus reus) and a guilty attitude
(mens rea). Political and socio-economic factors
of the Middle Ages influenced the creation of such
a two-element structure of crime in this family of
law.
It should be noted that the theory of "corpus
delicti" (composition of the crime) consisting of a
criminal act based on "actus reus-mens rea" in the
criminal law of the Anglo-Saxon legal family
shows its shortcomings. Although the "corpus
delicti" (criminal composition) existing in the
common law family consisting of the concept of
"actus reus-mens rea" has a long history of
development, it causes various problems in the
application of the related criminal law in the
qualification of the act. Because there are no
criteria (standards) for applying the criminal law
related to it. This leads to free interpretation of
the criminal law by law enforcement entities.
Among the existing scientists in this family of
common law, there are scientific approaches that
deny each other about the "corpus delicti" (the
composition of the crime) consisting of the
concept of "actus reus-mens rea".
M
ETHODOLOGY
Methods such as logical, systematic, historical,
logical-legal, comparative-legal, analysis of
criminal cases and statistical data, sociological
surveys were used in writing the research work.
As well as analyzing of the criminal law of
developed foreign countries like as USA, Canada,
England and Wales, New Zealand, Germany, Hong
Kong, Northern Ireland, Republic of Ireland,
Australia.
D
ISCUSSION
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Edward Coke (1552-1634), a mature scientist and
jurist of his time, is one of the founders who
contributed to the development of the concept of
"corpus delicti" (criminal composition) and
criminal act in this family of law. This concept is
based on the principle "actus non facit reum nisi
mens sit rea", which means that "the act does not
make one guilty, unless the mind is guilty". In
order for the crime to be socially dangerous and
criminal, there must also be a guilty party, which
consists of a mental attitude towards it. Although
E.Kouk developed the concept of a criminal act
based on this principle, it was not new. Because
the initial emergence of this principle goes back
to the scientific approaches of Roman law jurists.
But he developed his scientific approach based on
this principle and proved it as the basis of the
concept of corpus delicti.
In Anglo-Saxon criminal law, actus reus-mens rea
is central to criminal prosecution, but unlike
Romano-Germanic law, it is not the only basis for
criminal prosecution. Legislation, criminal law
doctrine and practice sometimes deny mens rea,
the subjective element of a crime.
For example, the definitions given to "actus reus"
(criminal act) and "mens rea" (mental attitude) in
the doctrine of criminal law of the Anglo-Saxon
family of law reflect different scientific
approaches, and there are many controversial
cases. In the scientific studies and literature of
this legal family, the concepts of "corpus delicti"
and crime are diverse and can be divided into two
large groups. They consist of:
1. Traditional scientific approach. This approach
is the result of conservative scientific research,
which represents the elements of crime and their
structure as fixed. This scientific approach is
accepted in most of the countries belonging to the
Anglo-Saxon legal family. Its main problematic is
the actus reus of criminal behavior as a central
element. The presence of "actus reus" is the basis
for bringing a person to criminal responsibility. It
does not matter whether or not there is a "mens
rea" mental attitude towards the criminal act.
Another problem with this scientific approach is
that it does not sufficiently define the structure of
other elements of the crime. In particular, if the
criminal act itself is sufficient, the criminal
consequence caused by it and the types and signs
of causal connection between them are not
sufficiently defined.
This
traditional
scientific
approach
is
conservative, i.e. it acquires an immutable
character, and the existence of "actus reus"
(criminal act) is the basis for bringing a person to
criminal responsibility. That is, the committed
criminal act includes the act, the criminal
consequence, and the causal connection between
the criminal act and the consequence. The fact
that a criminal act has been committed in
objective reality alone is sufficient for criminal
prosecution.
This scientific approach is expressed in many
scientific studies, in particular, in the scientific
works of J. Austin, M. Moore, D. Husak, J. Fletcher,
H. Morris, M. Gore, A. Enker, W. Blackston, G.
Williams [2]
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In the doctrine of criminal law existing in the
continental (Romano-Germanic) legal family, the
composition of the crime has four elements, and
the committed criminal act (act or inaction), the
criminal consequence and the causal connection
between them are the signs of the objective side
of the composition of the crime. The core of the
crime is the composition of the crime, and the
signs of the crime are primarily represented by
the signs of the objective side of the crime. The
rest of the elements are determined according to
the objective aspects of the crime.
2. Alternative (alternative) scientific approach. It
is based on the scientific approach of Paul
Robinson among the concepts of crime. He
opposes the scientific rule consisting of two
elements of the crime, such as "actus reus - mens
rea", and proposes in his scientific research that
the crime consists of a set of these signs. His
article "Should the Criminal Law abandon the
Actus Reus
–
Mens Rea distinction?" The scientific
work called was considered as an innovative
scientific approach in the doctrine of criminal law,
but this innovative scientific approach was not
supported by many scientists.
Attempts to change the concept of crime in the
doctrine of criminal law in the Anglo-Saxon family
of law have not found their scientific and practical
basis. It should be noted that the concept of the
traditional four-element criminal structure
existing in the doctrine of criminal law in the
continental (Romano-Germanic) family of law is
characterized by the fact that its signs and
structure are clearly developed and defined.
The signs of the crime structure developed in the
science and doctrine of criminal law are mainly
determined by the signs of the objective side and
they belong to a specific criminal act and are of
great importance in solving the issue of criminal
responsibility. The signs of the crime are
represented by the signs that represent the
elements of the crime. That is why the theory of
criminal law reflects the scientific approaches
(A.N.
Traynin,
N.F.Kuznetsova
and
V.N.Kudryavtsev) [3, P. 11, 46-47] that the core of
the crime is the structure of the crime. The
emergence of these scientific approaches was
initially based on the understanding of the
structure of crime based on the approach of
"objectivity" and "normativity". Well-known
supporters of the "objectivity" approach to
understanding the structure of crime (A.N.
Trainin, N.F. Kuznetsova and V.N. Kudryavtsev)
focused on "understanding the structure of crime
based on the normative approach" as a result of
long scientific research [4, P. 16]. As a result of
scientific research and research, they came to a
scientific conclusion, such as understanding the
structure of the crime as the objective reality and
legal description (characteristic) of the crime.
M.Usmonaliev and P.Bakunov described their
scientific views on the composition of the crime
based on the "normativity" approach [5, P. 128],
while A.S. Yakubov, M.Kh. Rustamboev, S.S.
Nayimov and M.Kurbanov described the
composition of the crime based on the
"objectivity" approach [6, P. 95, 137, 61, 41]
The signs representing the elements of the crime
are determined by the signs of the objective side
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of the crime. It can be said without hesitation that
the core of the composition of the crime is made
up of the signs of the objective side of the crime.
In our opinion, the Anglo-Saxon alternative
(alternative) scientific concept represents the
need to have the same structure as in the
continental (Romano-Germanic) family of law,
such as the crime and the elements of the crime.
Based on this concept, the necessary elements
"actus reus - mens rea" should give way to the
signs of the crime and the elements of the crime.
In this research, it is appropriate to systematically
and in detail analyze the above concepts of "actus
reus - mens rea".
According to the traditional concept of "actus reus
- mens rea", a group of scientists and researchers
put the "actus reus" (criminal act) in the central
place and leave the element of "mens rea" (mental
attitude) outside its scopeThat is, they state their
scientific views that a criminal act can exist
without a mental relationship. According to
another group of scientists, "actus reus" (criminal
act) cannot exist without "mens rea" (mental
attitude). "Actus reus" (criminal act) refers to the
actual criminal act committed. If the actus reus
(criminal act) committed does not contain the
element of mens rea (mental attitude), even legal
acts are criminalized by themselves.
Many scholars argue that in practice, "actus reus"
(criminal act) does not exist without the element
of "mens rea" (mental attitude). Indeed, such
scientific views are considered to have a logical
basis. Whether a criminal act has been committed,
there must be a mental attitude towards it. This
corresponds to the philosophical principle of
objectivity-subjectivity. At the same time, there is
also the institution of "objective accusation" in the
criminal law of the Anglo-Saxon legal family. An
example of this is "absolute criminal
responsibility". According to it, a person is
responsible only for the actual criminal act
committed. It is not important whether or not
there is a mental reaction to the committed
criminal actIn our opinion, this "simplified
structure" of "actus reus" (criminal act) is not able
to distinguish between criminal behavior and
legal act. Several scientists, namely P.Robinson,
J.Austin, A.Lynch and others [7, P. 187, 209, 116,
128], have described this in their scientific works.
Indeed, "actus reus" (criminal act), which
represents a specific act committed, is a central
element of criminal behavior. Glenville Williams
views "actus reus" (criminal act) in criminal law
as the committed criminal act, which has no
alternative and represents the mental attitude of
the person towards his act. He states that mens
rea (mental attitude) cannot be prosecuted when
it exists alone [8, P. 644].
Against the above, J. Mandjafik in his conceptual
scientific work "The independence of actus reus"
(independence of "actus reus"), he emphasizes
that "When bringing a person to criminal
responsibility, it is necessary to pay deeper
attention to his subjective attitude towards the
criminal consequences" [9, P. 11]. He cites as an
example harming another person's life or health
by means of "voodoo magic". From the author's
scientific point of view, it is clear that in some
cases "mens rea" (mental attitude) is sufficient. It
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is enough to have "mens rea" (mental attitude) to
prosecute a person. It does not matter whether
the criminal act is directly present or not. For
example, the first person who wants to get rid of
a person whom he considers to be an enemy "goes
to a person who practices voodoo magic
(sorcery), teaches his enemy to one doll, sticks
needles in it and performs various other magical
rituals, so that the mental attitude to the act is
enough to harm his life or health. even if the
criminal act is not committed directly against the
person.
When such actions are committed, the criminal
purpose and desire to cause certain criminal
consequences is necessarily realizedHowever, it
should be noted that actions aimed at harming life
or health by means of magic (sorcery) are not
accepted by theorists and practitioners as
"damage to personal life or health".
It can be said that the existence of "mens rea"
(mental attitude) is not sufficient to bring
criminal responsibility. Although "actus reus"
(criminal act) does not exist directly, the fact that
a person commits various actions based on his
mental attitude does not result in criminal
responsibility. In such cases, the question of
determining the causal connection between the
actions committed and the criminal outcome is
controversial and problematic. In the analysis of
the concepts of "actus reus" (criminal act) and
"mens rea" (mental attitude) existing in the
doctrine of criminal law of the Anglo-Saxon family
of law, J. Fletcher [10, P. 166.] also described an
approach similar to our scientific approach in his
scientific works. He also points out that the
question of determining causation in the above
cases is difficult and problematic.
It should be emphasized that there is no single
scientific approach to the nature and structure of
"actus reus" (criminal act) in the criminal law of
the Anglo-Saxon legal family. The view that "actus
reus" (criminal act) consists of physical actions of
a person's criminal behavior dates back to the
historical XVIII-XIX centuries in the criminal law
of this family of law. This issue is analyzed in
detail in the scientific works of O. Holmes. He
states that "Actus reus (criminal act) involves a
voluntary element and is conscious because the
act is controlled" [11, P. 54.].
From the scientific point of view of the above
scientist, since the criminal activity of a person
has acquired a voluntary nature, the conscious act
consists of desire and desire, and the result of the
criminal act is expected. In scientific works,
scientists use different words, terms (word
terminologies) to express the mental attitude
towards the committed criminal act. The words
"Will" used by them represent the volitional
element of criminal behavior. A criminal act
committed with desire is associated with the
implementation and execution of a person's will
[12, P. 30.].
A person who is not controlled by a voluntary
element is not criminally responsible for his
mental attitude. O.Holmes tried to prove this in
his scientific works, saying that "a spasm in an
organism (uncontrollable muscle contraction in
an organ) is not considered an act (a criminal
act)." [13, P. 54]. Glenville Williams tries to prove
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that the criminal legal content of the act is formed
by the will of the person who committed it and is
carried out through it [14, P. 12].
The scientific views against the scientific
approaches of the above scientists are visible in
the works of J. Mandjafiko. According to him, a
criminal act becomes significant only when there
is no "mens rea" (mental attitude) as the main
determinant of subjective attitude, the
characteristic and sign of volition. Comparing the
elements of "desire and desire" and voluntariness
of
criminal
behavior
creates
various
terminological (terminological) confusions in the
theory of criminal law [15, P. 15].
J.Turnir, who supported the scientific views of the
above-mentioned scientist, states his scientific
views as follows. He noted that increasing the
number of subjective elements of a criminal act
may cause various errors among law enforcement
entities in determining the criminality of the
committed act. In fact, the volitional element of
criminal behavior and "desire" are synonymous
terms. If the "actus reus" (criminal act) expresses
a willful character, it certainly defines the "mens
rea" (mental attitude) in some sense in the
execution of these actions. As a result, "mens rea"
(mental attitude) does not acquire meaning [16,
P. 53].
The scientific approaches of the above scholars
have mutually exclusive views. Equating "desire
and desire" and volitional elements to each other
is one of the gross mistakes of the above-
mentioned scientists. As every activity of a
person, as well as a criminal act, has internal and
external aspects, these aspects are composed of a
set of specific elements and signs. In criminal law
of the Romano-Germanic family of law, "will" is
expressed as part of the volitional element. For
example, if a person realizes that his act is socially
dangerous, sees its criminal consequences and
wants them to happen, then the criminal act is
considered to be committed with intent.
The desire to commit a criminal act must always
be compared with the clear expression of the
criminal consequences. A person should know
what criminal consequences may occur as a result
of his criminal behavior. Voluntary feature
(element) of a criminal act is related to the feature
of control in committing the act, and necessarily
requires a mental element (understanding).
However, it should be emphasized that in the
element of volition of a criminal act, a person does
not always know in advance the possible criminal
consequences.
J.Manjafikon's
scientific
approach
to
terminological (terminological) confusion about
the synonymous terms "will and desire"
(thinking) and volitional elements present in a
criminal act is not scientifically based and his
scientific views cannot be supported. It derives
from the presumption of common similarity in
comparing these elements to each other. The
comparison of these elements by the scientist has
not been sufficiently scientifically proven.
It can be seen that the scientist's approach to
dividing the signs of "actus reus" (criminal act)
related to voluntary actions is not scientifically
based. He claims that the voluntary character
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(characteristic) of criminal behavior excludes
actions, semi-reflex actions from its structure. He
cites coughing, breathing, etc. as examples. These
actions are not controlled by consciousness, they
are done unconsciously, they are also done semi-
consciously, but they can be controlled [17, P. 29].
Based on the above, the scientist expresses his
scientific approach that these actions correspond
to "actus reus" (criminal act) in the theory of
criminal law. The scientist admits that such
practice is rare.
In our opinion, the scientific approach of the
above-mentioned scientist has nothing to do with
criminal behavior. Such scientific approaches are
irrelevant to scientific discussion.
D.Mandjafiko's third argument against the
existence of a sign of volition in "actus reus"
(criminal act) is related to the problem of criminal
liability for inaction.
Inaction acquires criminal legal significance only
when a person is aware of his moral and legal
obligations and has the opportunity to fulfill
them. Awareness of obligations in criminal acts of
inaction is related to complex mental processes,
which cannot be studied within the framework of
"actus reus" (criminal act). As mentioned above,
"actus reus" (criminal act) consists of bodily
actions performed by a person to achieve a
certain resultReflex actions or actions performed
under the influence of insurmountable forces are
excluded. Actus reus (criminal act) emphasizes
elements such as control and awareness of div
movements in the act. In our opinion, these
elements are integral parts of "actus reus"
(criminal act).
In the theory of national criminal law belonging to
the continental (Romano-Germanic) family of
law,
H.R.Ochilov,
Sh.D.Khaidarov
and
Z.Z.Shamsidinov [18, P. 34] state that an act
committed under the influence of irresistible
force (under the influence of natural phenomena
or natural reflexes) is socially dangerous does not
count as an act. It should be emphasized that
mental activity acquires a complex character in
immobility. In it, a person must make a decision
to refrain from committing an act after evaluating
certain circumstances and their results. Inaction
is committed in the form of inactive (passive)
criminal behavior. For example, leaving a person
at the scene of the act without assistance, that is,
leaving him in danger. The voluntary nature of
inaction in this case is determined by the
awareness of not doing the actions that should be
done. A decision not to perform an action that
should be taken falls within the scope of "mens
rea" (mental attitude) [19, P. 202].
Inaction, which is an inactive (passive) form of
criminal behavior, differs from action in the
structure of a certain voluntary act (action). In
immobility, a person performs certain volitional
actions. For example, leaving the place where the
crime was committed, pretending not to have
seen it, being indifferent to how the incident
happened.
The above scientific approaches were aimed at
determining the nature of voluntariness
(element) as the central element of "actus reus"
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(criminal act). There are also other concepts of
"actus reus" (criminal act) in the criminal law of
the Anglo-Saxon common law family. In
particular, the concept is a "managed" scientific
approach, whose founder is H. Hart [20, P.100].
The main idea of this scientific direction is to
distinguish between constructions such as "there
is no way to do otherwise" and "the burden of
choice in certain cases (conditions)" [21, P. 1529-
61]. According to the scholars who support this
scientific approach, criminal law traditionally
evaluates such changes differently at the initial
stage of criminal behavior. According to the first
main idea, physical control is usually lacking in
this criminal case. Therefore, the possible action
is excluded from the "actus reus" (criminal act).
The author states that a person commits a
criminal act only if he can control it. According to
the second idea of this scientific approach, a
person is forced to commit a criminal act under
the influence of external factors due to the lack of
choice in certain situations. Such actions
constitute "actus reus" (criminal act). Only in
some cases they may not be considered a criminal
act. From this point of view, reflex actions are not
considered acts and they are equated to acts
committed as a result of physical coercion. The act
of physical coercion is determined by other
persons. At the same time, it would be
unreasonable not to recognize acts committed
under the last necessity or compulsion. When
committing such actions, the choice of legal or
illegal behavior is noticeably limited [22, P. 30].
The above scientific approaches differ in the
forms related to the awareness of the person and
his behavior. In particular, the volitional
approach is concerned with conscious and
unconscious actions controlled by the brain. A
behavioral approach is concerned with the
possibility of choosing different actions. As a
result, there are options for choosing behavior.
Criminal behavior or illegal behavior.
R
ESULTS
In the doctrine of criminal law of the Anglo-Saxon
family of law, voluntary and behavioral
(controlled) scientific approaches are not
sufficiently scientifically based. In our opinion,
the fact that a person is aware of the criminality
of his actions and can control them gives him the
opportunity to choose his behavior. It should be
emphasized that every voluntary criminal act is
controlled, and every controlled criminal act is
voluntary. Only then can any act be considered a
criminal act. The scientific debate about the
definition of "actus reus" (criminal act) seems
illogical. Because it is difficult to separate the
researched concepts as a result of scientific
approaches.
It is appropriate to do a comparative analysis of
the characteristics and elements of a certain
crime in the criminal legislation of countries
belonging to the continental (Romano-Germanic)
and general (Anglo-Saxon) family of law.
In particular, theft is the name of a crime defined
by the criminal law in the state of California,
Canada, England and Wales, Hong Kong, Northern
Ireland, Republic of Ireland, Australia. In these
countries, the "actus reus" of theft is usually
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defined as the taking, keeping, or using the
property of another without permission. Theft is
expressed in the unlawful depriving of the owner
of the property or the legal owner of the property
in possession of the "mens rea", that is, the mental
attitude towards the committed act (guilty mind -
"guilty mind"), or the intentional permanent
deprivation of the possession of this property
[23].
In England and Wales, theft is a statutory offence,
created by section 1(1) of the Theft Act 1968. This
offence replaces the former offences of larceny,
embezzlement and fraudulent conversion. The
marginal note to section 1 of the Theft Act 1968
describes it as a "basic definition" of theft.
Sections 1(1) and (2) provide:
1.-(1) A person is guilty of theft, if he dishonestly
appropriates property belonging to another with
the intention of permanently depriving the other
of it; and "thief" and "steal" shall be construed
accordingly.
(2) It is immaterial whether the appropriation is
made with a view to gain, or is made for the thief’s
own benefit.
Sections 2 to 6 of the Theft Act 1968 have effect as
regards the interpretation and operation of
section 1 of that Act. Except as otherwise
provided by that Act, sections 2 to 6 of that Act
apply only for the purposes of section 1 of that Act
[24].
Section 322(1) of the Criminal Code provides the
general definition for theft in Canada: 322. (1)
Every one commits theft who fraudulently and
without colour of right takes, or fraudulently and
without colour of right converts to his/her use or
to the use of another person, anything, whether
animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the
owner of it, or a person who has a special
property or interest in it, of the thing or of his
property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect
to its return that the person who parts with it may
be unable to perform; or
(d) to deal with it in such a manner that it cannot
be restored in the condition in which it was at the
time it was taken or converted [25].
C
ONCLUSION
1. In summary, the comparative legal analysis and
problems of the objective aspect of the crime and
the
concept of “actus reus” are as follows:
Firstly, in the theory and legislation of criminal
law belonging to the continental (Romano-
Germanic) legal family, the only basis of criminal
responsibility is the existence of all the symptoms
of the crime. The basis of the crime is the
structure of the crime, and social danger and
illegality are the necessary signs of the crime
based on the signs of the structure of the crime.
The legislator reflects the socially dangerous act
in legislation and creates the signs of illegality,
culpability and punishment of the crime. The core
of the signs of the criminal structure is formed by
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the signs of the objective side of the crime, and
other signs of the criminal structure are formed
depending on it. In the Anglo-Saxon (common)
family of law, a criminal act is considered a crime
based on the concept of "actus reus-mens rea".
This concept is based on the principle "actus non
facit reum nisi mens sit rea", which means "the act
does not make the person guilty if the mind is not
guilty".
Secondly, in the theory and legislation of criminal
law belonging to the continental (Romano-
Germanic) family of law, each crime has its own
composition, and this composition of the crime
has four elements. In the family of common law,
the crime consists of two elements, that is, "actus
reus-mens rea".
Thirdly, in the theory and legislation of criminal
law belonging to the continental (Romano-
Germanic) legal family, its elements (aspects)
representing the symptoms of the criminal
structure are expressed as an integral whole, and
all the signs representing each element (aspect)
of the criminal offense are taken into account
when qualifying a criminal act. In the common
law family, the presence of "actus reus" is the
basis for bringing a person to criminal
responsibility. It does not matter whether or not
there is a "mens rea" mental attitude towards the
criminal act (traditional approach).
Fourthly, The theory of criminal law, which
belongs to the continental (Romano-Germanic)
family of law, is distinguished by the systematic
and complementary nature of the concepts of
crime and the structure of crime. That is, the signs
of a crime consist of a set of objective and
subjective signs representing its four elements
(aspects), and in the legislative criminal law, each
crime provides signs consisting of a sum of
"minimum" and "sufficient". For example, "Theft"
expressed in Article 169 of the Criminal Code of
the Republic of Uzbekistan is provided by the
legislator as a combination of "minimum" and
"sufficient" objective and subjective signs
representing the nature of this crime. Objective
signs of the crime of theft - other's property,
"hidden" robbery, subjective signs - guilt, sanity,
age of criminal responsibility, individual.
In the common law family, the actus reus
(criminal act) includes a voluntary element and is
considered conscious because the act is
controlled. “The words "desire" represent the
volitional element of criminal behavior. A
criminal act committed with desire is associated
with the implementation and execution of a
person's will. Comparing the elements of "desire
and desire" and voluntariness of criminal
behavior has created various terminological
confusions in the theory of criminal law.
As a result of the comparative analysis of the
criminal law theory and legislation of countries
belonging to the continental (Romano-Germanic)
and general (Anglo-Saxon) law families, it can be
concluded that a criminal act consisting of the
concept of "actus reus - mens rea" in the general
(Anglo-Saxon) law family (deed) and the socially
dangerous act consisting of action or inaction in
the continental (Romano-Germanic) family of law
cannot fully cover criminal activity consisting of
criminal behavior of a person and cannot reveal
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the content of the concept of crime. First, instead
of a socially dangerous act, the phrase criminal act
should be used. Secondly, socially dangerous act
or criminal act are narrow phrases that cannot
fully cover the essence of some crime.
2. In our opinion, it is necessary to strengthen the
provisions on the composition of the crime, which
is the basis of responsibility formed in the
scientific-theoretical doctrine, as well as in the
criminal legislation of foreign countries, taking
into account the objective aspects of the crime.
For this reason, it is appropriate to add Article
161 of the second part of the current criminal law,
entitled " Basis of liability", to the following
content:
Article 161. Crime component
1) The crime Component represents the
minimum and sufficient set of objective and
subjective signs provided by the criminal law,
which qualify a harmful act as a specific crime.
2) The crime component shall be the legal basis
for the qualification of crime according to a
specific article of this Code.
This norm is reflected in the criminal codes of
Moldova (Art. 52) and others [26]. The strict
strengthening of this provision as a norm of the
criminal law serves to prevent different
interpretations of legal norms by courts and
investigative bodies, as well as the correct
qualification of the committed crime and the
correct application of the principles of justice,
humanity, and the inevitability of responsibility.
Also, the introduction of this amendment to the
criminal law clarifies the relationship between
the concepts of crime and the composition of the
crime, and leads to the correct classification of
crimes by law enforcement officers.
3. Concepts of crime and punishment occupy a
central place in the doctrine of criminal law. A
formula with a structural and logical algorithm
(sequence) for any crime can be: M1
–
M2
–
M3
–
M.
M1
–Жиноят объектив томони белгилари; M2–
жиноят таркиби бошқа элментлари ва
белгилари; M3–жиноят белгилари; M–жиноят.
M1
–
M2
–
M3
–
M. M1
–
signs of objective side of the
crime; M2
–
other elements and signs of crime
component; M3
–
crime signs; M
–
crime.
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