ОБОСНОВАННЫЙ РИСК С ПОЗИЦИИ ТЕОРИИ РАЦИОНАЛЬНОГО ВЫБОРА

Pravoprimenenie

Олег Николаевич Бибик¹ 

[1] Омский государственный университет им. Ф.М. Достоевского, г. Омск

关键词: Обоснованный риск;    теория рационального выбора;    управление рисками;    коэффициент риска;    стандартизация;    стимулирование обоснованного риска;   

DOI  :  10.24147/2542-1514.2018.2(2).48-55

学科分类：社会科学、人文和艺术（综合）

来源: Dostoevsky Omsk State University

【 摘 要 】

The subject. The article is devoted to analysis of criminal legal issues of reasonable risk. The purpose of the article is to prove the necessity of reasonable risk manangement in crim-inal legal purposes. Methodology. The problem of reasonable risk is considered through the theory of rational choice, economic analysis of law, as well as through formal legal analysis. Results, scope of application. The justified risk demonstrates the ineffectiveness of the use of state coercion in view of the social utility of the actions performed, since the benefit from them exceeds the possible adverse consequences. It is stated that art. 41 of the Criminal Code of the Russian Federation is rarely applied by judicial bodies. Reasonable risk is confound by extreme necessity. At the same time, it is not taken into account that the risk is not accompanied by the inevitable infliction of consequences, whereas if extreme necessity they come necessarily. It is proposed to introduce a system of management of reasonable risk, including through stand-ardization, development of rules of conduct in terms of possible risk, calculation of the risk fac-tor. The risk of consequences is a key factor in determining guilt. The greater the likelihood of socially dangerous consequences anticipated by a person, the greater the corresponding risk, the greater the degree of guilt of the subject. For example, with regard to direct intent, the risk factor may be 95-100%, with respect to indirect intent – 50-95%, with respect to recklessness – 1-49% (with frivolity, a person, although predicting the possibility of occurrence of events, but presupposes that they will not come; therefore, he estimates the probability of less than 50/50), with respect to negligence – 0.1-1%. If the risk of the event is less than 0.1 % or the average value reflecting its random nature, it can be concluded that there is a case. Conclusions. In case of a high probability of occurrence of consequences, the obvious risk is unreasonable and there are signs of intentional infliction. It is important to manage risks in terms of encouraging people to take risks if the criminal law imposes too high a risk level, a person abandons socially useful activities, which can lead to more serious adverse conse-quences. Stimulation of reasonable risk in criminal law is possible, inter alia, by means of pre-suppositions, in the performance of which the justified nature of risky actions is assumed.

【 授权许可】

CC BY