Problems of qualification of actions of accomplices in case of excess of perpetrator
Authors:   Kemerovo State University, Chernenko Tamara G. 
Published: February 2023

The article describes features of qualitative and quantitative excesses of the perpetrator. The article analyses problematic questions of qualification of excess of a perpetrator in complex complicity, when the accomplices perform legally different roles. It is noted that excess of perpetrator may be referred to when he commits a more serious crime than was agreed upon by accomplices on a preliminary agreement, and less serious crime. If the perpetrator commits a crime with aggravating circumstances which were not covered by the intention of other accomplices, the perpetrator is responsible for the crime with aggravating circumstances, organizer, instigator, accomplice - for complicity in a crime without aggravating circumstances. The author substantiates the conclusion that in a situation where the perpetrator, by deviating from the instigator's or organiser's intention, commits a less serious crime he should be charged with that crime. The instigator, on the other hand, should be charged with incitement to the offence with the qualifying characteristics that was covered by his intention, while the organiser should be charged with the activity of organising the offence with the qualifying characteristics. Within the framework of complex complicity it is difficult to qualify the actions of accomplices in such a form of quantitative excess, when the perpetrator commits a crime that is similar to the one intended by the accomplices, but of a different kind: for example, instead of theft he commits robbery. The article substantiates the conclusion that when qualifying it is necessary to use a legal fiction: the actions of accomplices should be qualified according to the direction of their intent: the perpetrator should be responsible for robbery, other accomplices - for complicity in a completed theft. Such classification of the crime emphasizes that complicity in the crime took place, but the perpetrator committed an excess for which the other accomplices are not responsible. The problems of qualification of the perpetrator's excess in the group commission of a crime involving several co-perpetrators who had previously agreed to commit a certain crime together were analysed. Consideration is given to the qualification of the offence in the case of "unsuccessful accomplice". Sometimes a person who has been induced to commit a particular crime commits, for whatever reason, a heterogeneous new crime instead of the agreed crime (in relation to the latter he does not even perform preparatory acts). The perpetrator who has committed the crime will be responsible for the de facto act (qualitative excess), while the actions of other persons for the crime committed by the perpetrator are excluded. The author justifies the conclusion that unsuccessful actions of other persons to organize or assist a crime should be qualified as preparation to a crime. It would be advisable to enshrine this provision in law, as has already been done in relation to failed "incitement". The author declares no conflicts of interests.