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A
BSTRACT
The article widely uses logical, inductive, deductive, systematic, logical-legal, comparative-legal research
methods. In particular, it was noted that the issue of causation in the institutions of general and special
parts of criminal law is very complicated and there are many problems with it. In the theory of criminal
law, scientists put forward eleven theories of causation in their scientific works, and the content of the
most important of them is analyzed in this article, as well as specific shortcomings of theories of causation
are recognized. The scientific views and researches of scientists regarding the theories of causation in
criminal law, the similarities and differences between them are described in detail. At the same time, two
of the theories of causation in foreign criminal law are widely used: the theory of equivalence and
adequacy, and among them: the first contains the necessary conditions ("conditio sine qua non" - "there is
no condition without a necessary condition..."), and the second is adequate( exactly the same, equal,
suitable) are stated to represent conditions. Also, the legal nature of eleven theories of causation in the
theory of criminal law, their specific rules are comparatively analyzed, their problematic aspects are
identified and sequentially described. This article focuses on eleven theories of causation in criminal law
theory and provides an instrumental and comparative analysis of their intertwined provisions. Also, out of
the eleven theories of causation, the theory of direct causation was found to be the most widely used. At
the same time, the doctrine of criminal law and existing scientific research were analyzed, and reasonable
theoretical recommendations were developed in this regard.
K
EYWORDS
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
CONCEPTS OF CAUSATION IN CRIMINAL LAW: PROBLEMS,
ANALYSIS AND SOLUTIONS
Submission Date:
June 20, 2023,
Accepted Date:
June 25, 2023,
Published Date:
June 30, 2023
Crossref doi:
https://doi.org/10.37547/ijasr-03-06-48
Feruzbek Khurramovich Khudaykulov
Doctor Of Philosophy In Law, Associate Professor Of The Department Of Criminal Law, Criminology And
Anti-Corruption, Tashkent State University Of Law, Uzbekistan
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Crime, corpus delicti, objective side of a crime, socially dangerous act, legal causation, causation in law,
theory, adequate, equivalent, conditio sine qua non.
I
NTRODUCTION
In the latest scientific studies on causation in the
institutions of general and special parts of
criminal law, it is noted that the issue of causation
is very complex and there are many problems
with it.
I. Ya.Kozachenko, V.N. Kurchenko, Ya.M.
Zlochenko, Sh.Khaidarov emphasize that the issue
of causality is so complicated that some authors,
in many cases, confuse the theories of causality,
and the issue of determining causality is also the
cause of heated debate [1, P. 26, 44].
Eleven concepts and theories of causation are
advanced in criminal law theory and existing
monographic research. However, not all of them
are supported, some of these concepts and
theories are supported by scientists and others
reject with their scientific approach [1, P. 26, 44].
In the theory of criminal law, scholars express the
content of eleven concepts and theories of
causation as follows:
1. "In judicial practice, there are many cases in
which criminal consequences are the result of an
action consisting of direct causes, which are equal
in one respect" (equivalence concept).
2. "It is necessary to determine the main reasons
that caused a particular crime. In the absence of
the main (principal) cause - a certain event could
not have occurred" (principal cause concept).
3. The categories "cause" and "consequence" are
closely related to the category "conditions". At the
same time, conditions do not play an active,
decisive role in the occurrence of this
consequence. Therefore, conditions and causes
cannot be compared with each other, otherwise
the boundaries between them will be
undermined" (the concept of causes and
conditions).
4. In the theory of criminal law and criminal
legislation, the term "to be the cause" is used to
reflect the immediacy of causality" (concept of
direct causation).
5. "When solving the issue of responsibility for the
consequences, it is necessary to proceed from the
difference between the concepts of necessary and
accidental causation. A causal relationship cannot
be one of cause and effect. Conditions, unlike
causes, are events that cannot directly cause
another event (consequence) by themselves, but
influence them and ensure their development to a
certain extent, but occur due to other causes and
circumstances" (the concept of necessary and
accidental causality).
6. "Certain difficulties arise as a result of the
addition of incoming (external) forces to the
chain of causal connections in the course of
specific causal connections, that is, complexity
arises when causal connections intersect with the
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behavior of third parties, the intervention of
natural forces, or the "fault" of the victim"
("incoming theory of forces).
7. "In judicial practice, it may be necessary to deal
with judgments about the possibility of achieving
a positive result in the treatment of the patient
with different degrees of probability" (the
concept of probabilistic causality).
8. "In order for liability to arise, the act of the
accused must create real opportunities for
causing harm. The possibility of the appearance of
the effect must arise in the cause itself" (the
concept of possibility and reality).
9. "The cause produces, causes, develops an effect
that does not yet exist, but should appear with
relative necessity" ("internal causality" concept).
10. "The development of the causal connection
should be evaluated taking into account the
subjective attitude of the person to the resulting
criminal consequence (result)... In criminal law,
the question of causation arises only when the
action (inaction) is committed under the control
of consciousness and will" ("culpability" concept).
11 Causal connection occurs even in small and
insignificant activities of a person. How small and
insignificant the action of the individual appears
compared to the slight muscular action that pulls
the trigger of a pistol, and yet the action of the
individual causes death. In this case, only the
general interaction of actions can be accepted as
a necessary condition that caused certain
consequences" (the concept of necessary
conditions).
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.
D
ISCUSSION
Among the concepts of causation in foreign
criminal law, two are widely used: the theory of
equivalence and the theory of adequacy. The first
expresses the necessary conditions ("Conditio
sine qua non" - "there is no condition without a
necessary condition..."), and the second expresses
adequate (exactly the same, equal, suitable)
conditions [2, P. 108].
The concept of adequate causation. In this theory,
each case is not considered separately, on the
contrary, the rule is put forward that if they are
considered separately, it becomes impossible to
draw general conclusions. It puts forward a
scientific approach that a number of specific cases
should be grouped according to typical
characteristics. According to this theory,
conditions that are not adequate (namely,
uniformity, equality, compatibility) cannot be
considered as the cause of the phenomenon.
Adequate conditions are conditions that are
typical.
In this theory of causation, an action in general is
considered a sufficient condition that can lead to
the emergence of a certain consequence in any
case.
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Proponents of adequate theory are divided into
the following main directions: subjective and
objective direction. According to Kries, who is a
subjective approach, "This theory requires taking
into account all the conditions known to the
subject or at least familiar to him during the
action" [3, P. 228].
According to the scientific approach of
S.A.Tararukhin and I.A.Klepitsky, in order to solve
the question of the necessity or randomness of
causal relationships, whether the occurrence of a
consequence in the situation under consideration
belongs to a typical situation in which the
occurrence of a necessary causal connection is
evidence or, on the contrary, such a consequence
is atypical for random situations (which occurs
only in some cases) is required to determine the
status [4, P. 100, 96-109].
In criminal law, two categories are used to resolve
the issue of causation according to this theory.
They are necessity and contingency. There are
many controversial scientific views and
approaches on whether or not it is correct to use
these two categories.
In this theory, causation is mainly divided into
two types: necessary and accidental causation.
Dividing causation into necessary or accidental
can raise many problematic issues. According to
this theory, some causes are necessary, through
which criminal consequences are inevitable,
while some consequences are accidental, through
which criminal consequences may or may not
arise.
Proponents of the objective direction of the
adequate theory solve this problem as they see fit.
All conditions at the time of the crime must be
taken into account. These conditions must be
recognized not by the entity that committed the
action, but by specific entities.
The existence of causality is determined by
human science. This situation does not mean that
the determination of the causal connection
acquires a subjective character, that is, its
determination does not depend on a particular
judge.
In conclusion, it should be said that according to
the theory of adequate causation, the action is
recognized as the cause of the resulting result
only when, under normal conditions and in a
specific case, it leads to the intended result. For
example, a shot to the head is fatal, but a light
blow to the head with a stick is not. According to
this theory, it is recognized that in the first case
there is a causal connection, and in the second it
is not.
The concept of prime causes. In the theory of main
causes, the main (main) condition that has a
decisive role in the repetition of this event is
distinguished from all the previous conditions of
a certain event, and it is recognized as the cause
of the resulting consequence. In this theory, the
main cause of criminal consequences is the
committed criminal act (act or inaction).
This theory creates a good opportunity for guilty
persons to avoid punishment. For example, if two
people try to kill another person by giving poison,
one person gives less poison and one person gives
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more poison. If the death was caused by the
actions of the person who administered the
poison. According to this theory, a person who
administers less poison may escape criminal
liability.
As a second condition of this theory, it can be seen
that all types of participation (organizer, agent
and assistant) are not brought to criminal
responsibility. That is, according to this theory,
the action of the executor is recognized as the
main, main cause.
Stuebel's states "Theory of First Causes is a
veritable refuge for murderers!" [5, P. 56].
According to B.S.Antimonov, "This theory can be
useful for criminals (gangsters). They have only
one thing to be careful of when committing a
crime, namely, creating a more effective
environment that will ensure the harmful
outcome. By injecting the victim with a little less
poison than his partner, the poisoner has the
burden of proving that the poisoner is wrongly
accused or not even a participant in the poisoning
[6, P. 184].
In our opinion, it is appropriate to recognize the
fallacy of this theory of causality. The
determination of causality based on the rules of
this theory leads to the incorrect application of
the principles of legality, justice and
responsibility of the JK in practice. It should be
noted that the theory of main causes cannot be
correct in the field of criminal law.
The concept of direct (proximate) causality.
According to the theory of direct (proximate)
causation, the only cause of criminal
consequences is the act or omission that is the
last, immediate and closest to the consequence.
This theory is the most widely used type of
causality theory in practice.
The Supreme Court of the Republic of Uzbekistan
applies this theory of direct (proximate)
causation in most cases. The phrase "causal
connection" is used in 14 places of the decisions
of the Plenum of the Supreme Court, and from the
interpretation of this phrase in the clauses of the
decisions, it can be known that it is a direct causal
connection. They consist of:
- Paragraph 2: the attention of the courts should
be drawn to the fact that in order to properly
qualify the act in cases of bodily injury, it is
necessary to establish in detail the existence of a
causal connection between the act of the guilty
party and the result. Paragraph 4: Liability for
intentional injury to the div of any severity
requires the existence of a causal connection
between the consequences specified in articles
104-110 of the Criminal Code, caused by the act of
the guilty party. If these consequences, although
they are related to the illegal actions of the
perpetrator, were caused by the individual
characteristics of the organism or the
inappropriateness of the medical care provided,
the victim's own actions that caused the damage
caused to him to worsen, or other circumstances
not covered by the perpetrator's intent, the
offense is punishable by the Criminal Code. there
will be no grounds for qualification with the
specified items... Paragraph 19: the courts should
take into account that when qualified by
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paragraph "d" of the third part of Article 104 of
the Criminal Code, in order to qualify the act as
such, it is necessary to establish a causal
connection between the serious injury caused to
the div and the resulting death [7];
- Clause 3.4 "Other serious consequences"
provided for in Article 285, Part 4, Clause "b" of
the Criminal Code, are understood to be the
consequences that are causally connected with
the errant actions of the guilty party, and must be
assessed by the court depending on the nature of
their severity... In paragraph 4.1: it must be
established that there is a causal connection
between the wrongful actions of the official and
the consequences of the crime committed by
him... In paragraph 5.3.2: an inevitable
characteristic of the composition of the crime is
the existence of a causal connection between the
committed violation and its consequences [8].
- in paragraph 13: criminal liability under Article
266 of the Criminal Code arises only when the
driver has a technical possibility to prevent a
traffic accident and when it is established that
there is a causal connection between his illegal
actions and the consequences [9].
It should be emphasized that the causal
connection between the action of a person and
the result resulting from it can be rejected even in
cases where it is established that the direct
existence of these connections is beyond doubt.
For example, a driver who does not violate traffic
rules hits a pedestrian who violates these rules
(crossing the road, not the sidewalk) [10].
Understanding causation based on the rules
contained in this theory presents some problems.
For example, issues of responsibility for types of
participation
in
crimes
committed
by
participation, issues of responsibility for indirect
damage to the object of the crime, issues of
responsibility for certain circumstances taken
into account by the guilty person in the causal
connection between the criminal act and the
consequence. According to the rules of this
theory, it will not be possible to solve and justify
these issues.
It should be noted that the beginning of the
causation is a criminal act, and the end of it is a
criminal consequence. Factors and forces that
influence the study of causality between the time
of initiation and completion play an important
role in the development of this causality.
As a practical example, it is necessary to cite the
following situation: for example, A. A criminal
named B. pushes B. under a vehicle coming at a
speed of 100 km/h. As a result of being hit by a
vehicle B. dies on the spot. A.'s criminal act is not
the direct cause of the occurrence of a socially
dangerous consequence, but an indirect cause.
There is a force that has had its effect on the
development of an indirect causal connection,
such as A. pushing B., which is the actions of the
motor vehicle driver (motor vehicle movement).
In this case, according to the theory of direct
(proximate) causation, we cannot hold the
criminal A., who pushed the victim B. under the
vehicle,
criminally
responsible.
Because
according to this theory, the causal connection
between the criminal act and the consequence
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should be direct. That is, according to this theory,
the direct effect of B.'s death is taken into account.
The concept of necessary and accidental causality.
The theory of necessary and accidental causation
was widespread in the criminal law of the former
Soviet Union and Uzbekistan until the 1990s.
According
to
A.A.Piontkovskii
and
S.B.Reshetnikova, "The issue of criminal
responsibility can be solved only based on the
necessary consequences of a certain human
action. All accidental consequences of this action
of a person are considered outside the scope of
criminal law... Only necessary causal connections
are important for criminal law" [11, P. 303, 42-
46].
In the theory of criminal law, even now there are
supporters of the theory of necessary and
accidental causation.
In particular, according to L.D.Gauxman, "It
should be emphasized that a random connection
cannot be recognized as a causal connection" [12,
P. 116]
However, V.B. Malinin and A.F. Parfenov criticize
this theory and the practical examples it contains.
They say "If the person who committed the action
can foresee the development of the causal
relationship and takes the necessary actions for
the occurrence of the consequence. The servant
purposely chases the boy into the pit where the
metal objects are lying. The passenger recognizes
that the drunken man lying on the ground is his
neighbor-enemy, sees the approaching car, and
deliberately lifts the drunken neighbor so that he
is under the wheels of the car. Do we not admit
that even in such cases there are causal
connections?” [13, P. 108]
According to N.A.Knyazev, "Any causal
connection is necessary and important. There
cannot be accidental causal connections, because
otherwise there would be a logical conflict with
the principle of causality. A cause may be
accidental with respect to another cause, or with
respect to circumstances unrelated to it, but it
cannot be accidental with respect to its own
effect" [14, P. 77-78].
The following general examples are given in the
theory of necessary and contingent causation:
–
A.
а young boy called his servant by his nickname.
Hearing this, B. a servant named after him chases
him and the boy falls into a pit and breaks his leg
while running away. B.'s wound gets infected and
he dies because of this infection; - A. a person
named is drunk and lies on the sidewalk. B. Seeing
A. lying on the sidewalk drunk, he picked him up
and continued his work. B tries to cross the road
in a drunken state and falls to the side of the road
and is hit by a motor vehicle. B. dies on the spot.
In this theory, the above-mentioned cases are
considered to be random. According to the theory
of necessary and accidental causation, these
accidental actions are important.
But according to M.Usmonaliev and P.Bakunov,
one of our national scientists, "The difference
between necessary and accidental connections is
that the necessary causal connection determines
the essence of the event, while accidental causal
connection is only a form of causal connection.
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Causal connection must be necessary for the
objective side of crimes with material content"
[15, P. 189].
According to M.Kh.Rustambaev, "Only the
necessary causal connection has criminal legal
significance. This means that causation exists
only if the action is a necessary condition for the
occurrence of the effect" [16, P. 168].
In short, by researching this theory, we put
forward the scientific approach that causality is
an ontological category, and neither randomness
nor necessity can be used to define it. The
relationship between the criminal act and its
consequence, which is the main cause of criminal
consequences, has nothing to do with
randomness or necessity.
The concept of possibility and reality. In the
theory of criminal law, there are several
proponents of this theory, and they are as follows:
According to V.S.Prokhorov, "The fact of deep
interdependence of events, their movement,
formation and development through each other is
expressed through the categories of possibility
and reality. Each phenomenon, before its
occurrence, has its basis in some objective reality,
reality, and appears as a possibility in relation to
the phenomenon under consideration. Thus, the
opportunity represents the development trend of
the envisioned reality" [17, P. 352].
According to P.G.Semenov, "Abstract (abstract)
opportunity represents the ability to develop a
certain reality, but does not determine its
direction in advance. An abstract possibility is far
from concrete, so it is not capable of producing
another event by itself. A real real possibility is
characterized by the presence of certain real
conditions for the emergence of a new reality, that
is, during its development, it is able to cause a
certain event" [18, P. 280].
In this theory, abstract and real possibilities differ
according to their objective nature. An event that
determines the abstract possibility of the
occurrence of certain consequences is not
considered the cause of this consequence.
Thus, the committed criminal act becomes an
objective reality by first creating a real possibility
of certain socially dangerous consequences, and
then causing certain criminal consequences by
causing damage to the objects protected by the
criminal law.
According to T.L.Sergeeva, "The practical result of
recognizing the possibility as a criterion of causal
connection is that the objective basis of criminal
liability is recognized only if it is determined that
there is only one possibility of this result
occurring in the action of the accused" [19, P. 85].
According to the rules of this theory, a causal
connection between the action of a person and
the criminal consequence exists in the following
cases: - if the action turned the real possibility of
the resulting consequence (result) into reality; - if
the act actively participated in the change of the
object of the crime as a result of the damage
caused; - when the action is suitable for
determining the causal connection between the
criminal act of a person and the beginning of a
socially dangerous consequence.
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In the theory of criminal law and scientific
research, this theory was criticized by scientists
in the early period of its formation and certain
objections were expressed.
According to N.N.Yarmysh, "From the point of
view of this theory, a "necessary" causal
connection occurs only in cases where an action
causes a consequence as a result of its own
necessity - in cases where the consequence in a
certain specific situation can really naturally
result from the performance of these actions" [20,
P. 444].
According to Sh.Khaydarov, "The inaction of the
culprit in not properly performing his duties in
relation to the profession creates an opportunity
for these processes to develop in a negative
direction, that is, it creates a risk of harmful
consequences for the life and health of the victim.
As a matter of fact, in the case of inactivity, there
are real causal relationships, but they are
characterized by certain characteristics" [21, P.
68-69].
In the study of causality theories in the doctrine
of criminal law, it is appropriate to examine its
theoretical aspects with examples, as well as its
practical aspects. Let's look at a theoretical
example above.
K. with L. a quarrel begins between them. L. Beats
K. For this K. decides to kill him. K. finds his
father's shotgun, hides it, and as the day passes,
he begins to wait for an opportunity to kill L. One
day K. He finds out that L. was drinking vodka
with his friends. From this side of Anhor, K. shoots
from the rifle towards K. from a distance of about
35 m. A shot from a shotgun hit L., changed its
direction and hit L. his friend, who was next to
him, touched O.'s head. O. He died on the spot due
to a gunshot wound. L. and he will live without
dying. The court finds that K.'s act has a causal
connection with O.'s death, and finds his act
against L. guilty under Articles 25, 97 and 102 of
the Criminal Code [22].
According to the existing rules of the theory of
possibility and real reality (authenticity) causal
connection, the causal connection between the
criminal act (K.'s shotgun shot) and L.'s death (the
criminal consequence did not occur) is
recognized. The connection between the death of
O. and the criminal act should not be recognized.
The example given above shows in a practical way
that this theory is wrong. According to this theory,
the consequence caused by K.'s criminal action
and the shooting of L. is a real reality. The second
case, that is, O.'s death, is an abstract possibility.
According to the rules of this theory, the cause of
O.'s death is impossible. But as we can see in the
practical example, O.'s death occurred as a
criminal result. Contrary to the specific possibility
category of this theory, L. survived without dying.
R
ESULTS
The concept of culpability or culpable causation.
In this theory, scientific views and approaches
about the need to use special, legal concepts of
culpability in criminal law are put forward.
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In particular, according to V.D. Filimonov, "Causal
connections can be legally significant or legally
insignificant" [23, P. 164].
According to this theory, the general concept of
causation is unnecessary to justify a criminal
charge. According to this theory, a special concept
of causation in the criminal-legal sense is formed,
usually using the institution of criminal
prosecution.
According
to
N.D.Sergeevskyi
and
P.P.Mikhailenko, "Only the causal connections
that cover or should be covered by the subject's
ability to see can have legal significance. A person
can be accused only in connection with events
that occurred as a result of his actions, that he saw
in advance" [24, P. 46, 73-74].
In the opinion of N.D.Sergeevsky, "in criminal law,
if the person performing the action saw or could
have seen the consequences of this event, a causal
connection is established between the person's
actions and the event related to them" [25, P. 47].
I.A. Klepitskyi also stated the rules of this theory
in his scientific work [26, P. 174-185].
According to this theory, when a person sees the
consequences of a criminal act, it means that this
person should know that the sum of his criminal
actions is expressed as a crime in the criminal law.
Also, according to this theory, a person perceives
a criminal event only if he knows the combination
of forces and facts specific to it.
In this theory, according to the existing rules,
looking at the criminal consequences means
knowing the incident and its content in all its
details. At the same time, in some cases, it also
means knowing some aspects of the criminal
event. This includes understanding that mistakes
can have unintended consequences.
As a disadvantage of this theory, it can be said that
it is almost impossible for a person to see all the
details of the combination of actions and
consequences resulting from his criminal act.
In the theory of criminal law, it is considered
sufficient that a person sees the real possibility of
criminal consequences in intentional crimes. At
the same time, the person is aware of the
development of the causal connection. However,
in the case of crimes committed through
carelessness, it is enough that the person has the
opportunity to see the consequences.
Criminal-legal causation in criminal law cannot
completely abandon philosophical foundations.
Criminal-legal causation is inextricably linked
with the concept of dialectical causation in
philosophy, which denies the introduction of any
subjective sign into objective reality. That is why
the concepts of causation and guilt are
incompatible. They are expressed in the objective
side and the subjective side of the crime.
In substantive crimes, the presence and level of
guilt in the criminal act committed by a person is
determined through causal connection, and there
are sufficient grounds for bringing this person to
criminal responsibility.
The concept of necessary conditions (conditio
sine qua non). This theory is the most widespread
among the theories of causation in the theory of
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criminal law, according to which, in order for a
criminal act to be the cause of an effect, it must be
a necessary condition for the occurrence of this
effect.
According to K.Hakimov, "causal connection can
be determined in two forms in the crimes
provided for in articles 98, 106 of the Criminal
Code: firstly, the affected provoking effect and
actions based on it are at least as a result of some
illegal actions of the victim provided for in articles
98, 106 of the Criminal Code committed and
connected with it; secondly, the victim's death,
severe or moderately severe injury should have
occurred as a result of a socially dangerous act
committed by the perpetrator in a state of affect"
[27, P. 48]. In his monographic research, he put
forward both the theory of equivalence and the
theory of necessary conditions.
In the concept conditio sine qua non("there is no
situation without a necessary condition...") in
order for a criminal consequence to occur, the
aspects of all the conditions are fully present
before it. These conditions are proximate and
remote from the crime, but they are not
equivalent. If each of them meets the rules and
requirements of the criminal law, each of them is
recognized as the cause of the committed criminal
act. The cause of the criminal consequence is
understood as a criminal act without which it is
not possible to commit a crime, which is
considered a necessary condition.
According to Dj. Fletcher, A.V. Naumov and U.S.
Dzhekebaev, in the theory of "Necessary
conditions (conditio sine qua non)" theory, in
order for a criminal consequence to occur, all
conditions must be fully present before it. "this
theory is not a sufficient basis for bringing a
person to criminal responsibility" [28, P. 178,
109].
D.M.Kushbakov and A.A. According to the
Grebenkovs,
"Separating
the
signs
of
drunkenness from the individual cases of criminal
responsibility, the causality (the existence of a
causal relationship between the consumption of
these substances and the impairment of div
functions) should be determined when bringing a
person to criminal responsibility" [29, P. 107-108,
52]. It is clear from the opinion of scientists that
the rules of this theory were applied. For example,
a person would not have committed the crime
provided for in Article 266 of the Criminal Code if
he did not consume alcohol products while
following the traffic rules.
In particular, according to A.V.Uspensky, "Any
necessary conditions are expressed as reasons...
Causal sufficiency exists throughout the system.
The omission of any element from it, no matter
how insignificant it may seem when considered
separately, deprives the whole complex of its
systematic character - the ability to be subjected
to causality. Based on this, it is proposed to
"determine the significance of the action not in
relation to the consequences, but in relation to the
system that creates this consequence" [30, P. 103-
107].
According to V.N. Kudryavtsev and A.V. Naumov,
"If used in practice, this theory will lead to the
expansion of the scope of criminal responsibility.
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Such a theory cannot be accepted in the theory of
criminal law. Responsibility for actions related to
harmful consequences must have a certain
character" [31, P. 111].
Based on this theory, a question arises, for
example, A. He killed B. with a kitchen knife.
Kitchen knife V. if the knife was made by a master
craftsman. Then, master knife maker V. causes the
victim's death and is he also prosecuted under
this theory?
According to the criminal law, causal connection
is not enough to bring a specific person to
criminal responsibility. For him, it is required that
all the signs of the crime structure be present.
It should be emphasized that if the persons
referred to in the above example, that is, the
master who made a kitchen knife for A., who
committed the crime of intentional homicide, is
proven guilty of this criminal act, then he must
also be held criminally liable. For example, if he
made a special knife for the master A. to kill a
person, he will definitely be prosecuted as an
accessory.
It will be appropriate to consider the following
example in which theories of causality are
relevant:
N. and O. they agree in advance to rob someone
else's property, and after illegally entering the
house of 65-year-old P., they tie him up and put a
rag in his mouth so that he does not scream. N.
and O. P. was hit several times on the head and
different parts of his div because he resisted
during the tying process. As a result of the blow,
P.'s nose, jawbones and the base of the skull were
broken. N. and O. robbing another's property, i.e.
committing the crime of trespass, they take P.'s
belongings. P. with hands and feet tied. dies on the
spot as a result of mechanical asphyxiation
caused by having a rag stuffed into his mouth
[32].
The above practical example shows the failure
and shortcomings of several theories of causation.
They are as follows: - the theory of possibility and
reality - the possibility of death due to mechanical
asphyxiation caused by a cloth stuck in P.'s mouth
is abstract; - theory of adequate causation - death
due to mechanical asphyxiation caused by a cloth
stuck in P.'s mouth does not always (typically)
occur under normal conditions; - necessary and
accidental causation - there is a higher probability
of death as a result of bodily injury inflicted on P.;
- theory of main causes - according to this theory,
only the person who put a cloth in A.'s mouth
should be responsible for the crime of murder.
C
ONCLUSION
In short, the issue of causation is so complex that
in criminal law theory, the theories and concepts
of causation are often confused. It is not possible
to generalize one of the eleven theories of specific
causation in solving the issue of causal connection
between any criminal act and the resulting
socially dangerous consequence. As a solution to
this issue, it is necessary to develop specific
criteria, rules and principles for determining
causality.
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In short, definitions of causation in criminal law
are based on two principles, which are
methodologically important by their nature. The
first principle is the principle of artificial isolation
of events ("but-for test"), and the second is the
rule of mental exclusion in determining causality.
In order to solve the problem of causation in the
theory of criminal law and the practice of law
enforcement, the following rules and principles
should be applied as suggestions and definitions:
1) socially dangerous act-time-socially dangerous
consequence rule. The act and the criminal
consequence are in a specific sequence of time,
and it must be determined that the act was
committed before the criminal consequence;
2) the principle of artificial isolation of events,
that is, first of all, it is necessary to isolate the
behavior of a person, because if his behavior
consists of criminal behavior, then the criminal
act is the necessary cause of the resulting
consequences. Secondly, it is necessary to
separate the necessary conditions from the chain
of causes (causal connection), because the
necessary condition is a category that helps the
necessary cause. Thirdly, it is necessary to
distinguish the resulting effect. Also, the rule of
special logical isolation should be applied, that is,
the individual's behavior and the resulting
consequences should be isolated and logically
separated;
3) the principle of "consequence-criminal act".
This principle consists in the application of the
principle of proceeding from the criminal
consequence to the act. In this method, the
starting point is defined as a criminal
consequence, first of all, the crime that caused a
harmful consequence in the preliminary
investigation is related to the determination of
the consequence in the first place. Secondly, the
causal connection consists of a chain of certain
causes, and in order to know and determine it, it
is necessary to go from one part of the chain to
another.
4) the rule of "logical exclusion and negation"
("but-for test"). The golden rule of causation, the
rule of "logical exclusion and negation", should be
applied. According to this rule, a certain criminal
act-criminal consequence occurs, and only then
there is a causal connection. That is, if the act we
are interested in does not happen, criminal
consequences cannot arise.
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Volume 03 Issue 06-2023
293
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