The USA Journals Volume 03 Issue 12-2021
118
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
118-123
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-18
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
The article deals with the legal analysis of the subjective side that is considered to be one of the
elements of the crime of plundering. During the analysis, the form of guilt in the commission of
plundering, the motive and purpose of the crime are studied. As a result, it is determined that today’s
court proceedings are carried out as a result of changing or annulment of court verdicts related to
robberies, misunderstanding of the requirements of current legislation and inaccurate assessment of
its subjective side due to some deficiency in the law. In order to eliminate these problems, the author’s
proposals on introduction of the concept of plundering in the criminal law, understandable use of the
terms prejudice and bribery, as well as amendments and additions to the decision of the Plenum of
the Supreme Court to provide clear and unique qualification of robbery.
KEYWORDS
Plundering, Subjective Side, Guilt, Motive, Purpose, Mercenariness, Other’s Property, Openly.
INTRODUCTION
It is expedient to start with the analysis of the
expressions of motive and intention in criminal
law, first of all, from the analysis of the
importance of the motive and intention of the
crime in qualifying the looting. Motive and
intention are necessary elements of a
The Importance Of The Motiv And The Purpose Of The Crime
For The Qualification Of The Plundering
Abduqodirov Farkhodjon Fakhritdin Ugli
Doctoral Student Of The Academy Of The MIA Of The Republic Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 12-2021
119
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
118-123
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-18
I
MPACT
F
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2021:
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952
particular crime and may be reflected in the
disposition of the article of the special part of
the Criminal Code, which provides for this
composition. However, even if the motive and
intention are not specified in the norm, their
identification is important in resolving the issue
of criminal liability of the person who
committed the crime.
Motive and intention are indicators of the
desire for a result, and we think the difference
is that it determines the stage of mutual
aspiration. In this regard, V. N. Kudryavtsev
states “the motive is an internal excitement
that is not directed to a specific object. The idea
that the intention indicates what result should
be achieved to satisfy this motive” is close to
the truth [1, p.101].
According to A.I. Rarog, motive arises from
needs and contributes to the formation of the
intention to a certain extent, the intention
together with the motive leads to the desire to
achieve the desired result in a certain way [2,
P.113].
M.Kh. Rustambayev also expressed his opinion
on this issue, saying that the motive for the
crime is a conscious or unintelligible internal
desire of certain needs and interests, which the
person relies on when committing a crime. It is
the motive that influences a person’s mental
and volitional state to achieve a premeditated
criminal goal [3, p.177].
Hence, if the motive for the crime is an internal
force that incentivizes the person to commit
the crime, the intention is an imaginary result
that the subject expects from the action to be
taken. Accordingly, criminal and criminal-
procedural law is required to determine the
motive for a socially dangerous act committed
by a person. The reason is that the motive
determines the nature of the crime, the degree
of social danger of the act, the cause of the act,
the specific characteristics of the subject, as
well
as
mitigating
and
aggravating
circumstances.
It is obligatory to determine the motive for the
crime, even if the motive is not directly
specified in the offense of looting, as well as in
the disposition of robbery. The doctrine is
formed that the motive of all crimes related to
robbery is greed (selfishness) in the theory of
criminal law [4, B.12].
Part VIII of the Criminal Code is biased in the
legal sense of the term “the motive is defined
as “selfishness - an intention expressed in the
pursuit of material or other property gain or
material costs from the crime committed”. In
particular, the Article 14 of the Plenum of the
Supreme Court of the Republic of Uzbekistan
of September 24, 2004 No. 13 “On Judicial
practice in cases of intentional murder”
clarifies the motive as an acquisition of
ownership, housing and similar rights) or
material costs (return of property, debt,
payment for services, fulfillment of property
obligations, alimony, etc.). Both the legislature
and the practice were distracted by the theory,
calling the accused`s sole intention to gain
material gain a prejudice in the law and a greed
in the Plenum`s decision. Indeed, according to
Sh. L. Montesquieu, “the concepts in the law
should be clear, excluding the possibility of
different interpretations” [5, p.367].
It should be noted that only in textbooks,
commentaries and other literature it is noted
that selfish motives and intentions are among
the most dangerous signs of looting. The
existence of the term looting in the disposition
The USA Journals Volume 03 Issue 12-2021
120
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
118-123
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-18
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2021:
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of robbery is considered to be the robbery of
another`s property for malicious purposes and
with the same motive. It is obvious that
textbooks, commentaries, and other literature
have no legal force and cannot be used in law
enforcement practice. This problem can be
solved only by defining the concept of
“looting” in the eighth section of the Criminal
Code, entitled “Legal meaning of terms”,
clearly indicating the signs of looting.
According to A. M. Abdukhalikov, the
perpetrator of the looting is motivated by
hooliganism, revenge, enmity and other vicious
intentions. However, the main motive that
incentivizes a person to commit looting is
greed, that is, his intention is to gain property
for the benefit of himself or others by
committing a crime. It is the motive of
prejudice that determines the nature and
intention of the guilty actions [10, p.13]. This
situation is somewhat controversial, and it
cannot be said that the motive of the person
who committed the crime with the motive of
hooliganism, revenge, enmity, greed prevails,
the motive of the crime is usually the only
motive to commit the crime.
Although the subjective categories being
analyzed, i.e., motive and intention, seem
closely related to each other, they are not
similar in content and describe the volitional
process differently. In this case, the question
naturally arises that “Is greed the motive or
intention in looting?”. If the intention is an
imaginary result of an action of the offender
intended to satisfy this or that need, the
motive arouses the person`s desire to commit
an action and directs it to a specific intention.
There is also a motive for looting, such as
taking possession of another`s property for
one`s own benefit and being materially
interested in it. Thus, the motive forces the
subject to set a clear intention.
Looting differs from other crimes that are
similar in objective features by the motive and
intention of the crime.
According to T.Vorobyeva and A.Santalov, the
main distinguishing feature of looting from
hooliganism is the intention of taking property.
The purpose of possession of property in
harassment is to disregard the rules of conduct
in society, to disrespect the individual, and in
looting, to appropriate property and use it at
will [11, p. 11]. We partially support the views of
T. Vorobyeva and A. Santalov, because looting
differs from hooliganism not only in its
purpose, but also in its motives.
In this regard, we support L. D. Gauxman`s
opinion that open looting of another's
property, for example, possession of his hat
with malicious motives and intent, is qualified
as looting, and possession as a result of
hooliganism is qualified as hooliganism [12, p.
84-85].
An accused person (N.A.M) openly robbed of
50,000 soums and a Samsung Duos telephone
worth 250,000 soums at a mercenary residence
in Altiarik district in order to openly loot the
property of another person (R.N.T.), on
November 3, 2020, at 4:30 p.m. This case is
considered by the Altiyarik District Court
qualifying that insulting N.R. with obscene
words, shouting, and beating him on various
parts of his div, a condition that caused minor
damage to his health for no more than six days.
The court qualified the case under the Article
166, Part 1 and the Article 277, Part 1 of the
Criminal Code of the Republic of Uzbekistan
and issued a verdict of guilty [13]. In this case,
The USA Journals Volume 03 Issue 12-2021
121
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
118-123
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-18
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we agree with the court`s legal assessment of
the situation, as the defendant`s intent is not
only to openly loot another`s property, but also
to disregard the rules of conduct in society. The
peculiarity of the ulterior motive is that the
looter takes the property of another without
taking compensation for his own property and
his own voluntary use [14, B 56-57]. Therefore,
it is no looting in the event of arbitrary,
erroneous assumption of property from the
victim, including the temporary seizure of
property for the purpose of reimbursing the
value of the looted property, as well as for the
purpose of returning it when necessary.
For instance, citizen (T. T.) said that he would
pay for a Nokia 5530 mobile phone worth
150,000 soums, which he had given to a citizen
for purchase, in 2-3 days on November 20, 2012,
at 5:30 pm,. He thought that K. K cheated his
phone because he did not pick up the phone
for the call he made without seeing the citizen
K. K. On November 23, 2012, the Judicial Board
dismissed the case in accordance with the first
paragraph of the Article 83 (1) of the Criminal-
procedural Code, stating that the case of the
citizen T. T. withdrew his application and
returned his phone was not considered a crime
[16].
The analyzed criminal cases show that the
difficulty in qualifying looting in judicial-
investigation practice is related to determining
its motive and intention. As a reason for this,
we can show that motive and intention are
inextricably linked with the inner spiritual
world of the individual. In this regard, R.I.
Mikheeva argues that one of the main reasons
for the error in determining guilt is the
misunderstanding and interpretation of the
subjective characteristics of certain forms of
criminal activity, such as intent and negligence
established by criminal law [17, p. 23]. E.
Zabarnuk and Z. Soktaev admit that currently
criminal law does not sufficiently take into
account the motives and intentions of the
offender, as well as the subjective side of his
subsequent
behavior,
namely
the
psychological aspects [18, p. 47-48]. The
surveys conducted by Y.M. Brainin showed
that sentences that were amended or revoked
due to misidentification of motive and
intention accounted for 21% of the sentences
that were amended or revoked by the total
cassation instance [19, p. 170]. The above
points show how important the motive and
intention of the crime are in qualifying the act.
If we focus on extortion, which is a form of
looting, Paragraph 12 of Plenum Resolution No.
11 of 17 April 1998 “On certain issues in judicial
practice in criminal matters in the field of
economics” states that “claiming a debt from
a debtor cannot be described by the Article 165
of the Criminal Code, but in some cases should
be assessed as arbitrarily (Article 229 of the
Criminal Code). In our view, this correct
approach proves once again that the subject of
looting crimes can only be someone else`s
property. It is advisable to apply this direction
to the qualification of looting.
In some foreign countries, for example,
paragraph 7 of Resolution No. 27 of the Plenum
of the Supreme Court of the Russian
Federation of 22 December 2002 “On Judicial
practice in cases of theft, looting and invasion”
reads as follows. “Unlawful misappropriation
of another`s property without a malicious
intent does not constitute robbery or theft,
such as the temporary use or misappropriation
of another`s property for the purpose of future
return. Based on the circumstances of the case,
if there are grounds, the act should be qualified
The USA Journals Volume 03 Issue 12-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
December 30, 2021 |
Pages:
118-123
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-18
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by the Article 330 or another article of the
Criminal Code of the Russian Federation” [20].
In addition, Resolution No. 8 of the Plenum of
the Supreme Court of the Republic of
Kazakhstan of 11 July 2003 “On Judicial practice
in cases of looting” [21], Resolution of the
Plenum of the Supreme Court of the Republic
of Belarus of 21 December 2001 Resolution No.
15 “On the application of the legislation of the
court in consideration of cases related to
looting” [22] stipulate that theft or looting of
another`s property for the purpose of
temporary use and subsequent return to the
offender, or as a result of an alleged right, was
not constituted theft or looting.
In conclusion, today, the judicial practice also
requires that this positive foreign experience
be implemented in the relevant decision of the
Plenum of the Supreme Court of the Republic
of Uzbekistan in order to prevent further errors
and omissions by the judicial authorities, as
well as to ensure a proper legal assessment of
the actions of offenders. In this regard, we
propose to supplement the decision of the
Plenum of the Supreme Court of the Republic
of Uzbekistan “On the judicial practice of
criminal cases of theft, looting and invasion of
another`s property” with the following 51
paragraph:
– “51. Theft and looting by the offender as a
result of temporary use or presumed right to
property without the intent to maliciously
constitute a crime of theft and looting. The act
should be qualified under the Article 229 or
other articles of the Criminal Code in case there
are sufficient grounds”.
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