scholarly journals The Doctrine and Legal Positions Developed by the Courts in Theft of Someone’s Property Cases

Lex Russica ◽  
2021 ◽  
pp. 108-117
Author(s):  
S. M. Kochoi
Keyword(s):  
Russian Federation ◽  
Scientific Literature ◽  
Criminal Code ◽  
Legal Definition ◽  
The Russian Federation ◽  
Points Of View ◽  
Individual Decisions ◽  
Legislative Amendments ◽  
Definition Of

The paper considers the legal positions developed by the courts in cases of theft of someone’s property. The author is critical of the concept of "judicial doctrine", believing that the courts in essence cannot create a doctrine (theory, science), but notes the significant role of the legal positions of the courts in the formation and development of the doctrine (theory) of theft. The purpose of the work is to find an answer to the question of whether the legal positions of the courts on the application of the legal definition of theft in practice remain relevant (note 1 to Article 158 of the Criminal Code of the Russian Federation), as well as the doctrine about this crime and its elements. Having studied various points of view contained in the scientific literature, as well as the positions of the courts, including those expressed in individual decisions of the highest judicial instance of the country, the author concludes that neither the legal definition of theft nor the doctrine of it has lost its relevance. We should not be talking about the "revision" of legal and scientific structures or the "collapse of the system", but about the crisis of practice and doctrine due to the uncertainty associated with the emergence of new property goods and objects (virtual assets, digital rights, etc.) and forms of encroachment on property that are not covered by any of the features of theft. For this reason, in the absence of answers to the challenges that have arisen, controversial decisions are made in judicial and investigative practice, and contradictory recommendations are proposed in the scientific literature. According to the author, the crisis that has arisen can be solved by introducing legislative amendments to Chapter 21 of the Criminal Code of the Russian Federation aimed at forming norms on new property crimes against property that do not contain elements of theft of someone’s property.

scholarly journals Theft vs find: theoretical and practical issues

2021 ◽  
Vol 2021 (3) ◽  
pp. 121-130
Author(s):  
Nikolay Ryabinin ◽  
Kseniya Filipson
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Civil Code ◽  
Theory And Practice ◽  
Controversial Issues ◽  
Main Research ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Definition Of

The purpose of the study is to analyze the features of legal relations regulated by Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation, as well as to identify and resolve the problems related to the proper legal definition of these relations. The main research methods are: structural-system, methods of logical analysis and synthesis, formallegal, comparative-legal, as well as collecting information through the study of scientific periodicals and materials of judicial practice on this issue. The article discusses in detail the features of the delimitation of relations arising in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation. The authors note that in the theory and practice of both criminal and civil law, one of the most controversial issues is the problem of differentiating a criminal offense under Art. 158 of the Criminal Code of the Russian Federation and acts that are not such (Article 227 of the Civil Code of the Russian Federation). So, to date, there is no consensus about the signs of differentiation of these compositions, and the criteria that have been developed at the present time are very vague and contradictory. Misinterpretation and application of norms when qualifying relations in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation does not allow citizens to protect effectively their rights and legitimate interests. Therefore, in order to prevent violations of civil rights, it is necessary to conduct a comprehensive scientific study of the features enabling to differentiate the above mentioned relations. Considerable attention is paid to the problem of appropriation of the found someone else’s property, when this property has identifying features. The authors define the types of property in the possession of the owner or any other type of legal owner, and also disclose the main characteristics of the specified property. In addition, the article formulates the authors’ definitions of such concepts as «finding» and «appropriation» of what was found. Based on the analysis of judicial and investigative practice, the authors propose the following recommendations for changing the legislation and the practice of its application in order to resolve controversial issues arising from the qualification of crimes against property. First, it is necessary to make clarifications in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 20 «On judicial practice in cases of theft, robbery and banditry» which property should be recognized as being in the possession of the owner or other legal owners and determine the characteristic features of such property ... Secondly, it is necessary to formulate and consolidate the legal definition of a find in the Civil Code of the Russian Federation. Thirdly, to return into Chapter 21 of the Criminal Code of the Russian Federation «Crime against property» the part «Appropriation of the found property».

Problem aspects of legislative regulation of the grounds for carrying out operational search activities

2019 ◽  
pp. 122-130
Author(s):  
Алексей Вячеславович Агарков
Keyword(s):  
Russian Federation ◽  
Scientific Literature ◽  
Federal Law ◽  
Factual Information ◽  
Search Activity ◽  
Legislative Regulation ◽  
Current Article ◽  
The Russian Federation ◽  
Points Of View ◽  
Definition Of

Поставлена проблема необходимости совершенствования законодательного регулирования оснований проведения оперативно-розыскных мероприятий. На основе ранее проведенного анализа научных трудов формулируется авторское определение указанного понятия: предусмотренные оперативно-розыскным законом обстоятельства, имеющие значение для решения задач оперативно-розыскной деятельности, объясняющие причину осуществления оперативно-розыскных мероприятий. Используя точки зрения многих известных в области теории оперативно-розыскной деятельности ученых, автор обращает внимание на многочисленные пробелы и противоречия Федерального закона «Об оперативно-розыскной деятельности» в части оснований для проведения оперативно-розыскных мероприятий. Автор присоединяется к ранее высказанному в научной литературе мнению о необходимости разделения действующей статьи 7 Федерального закона «Об оперативно-розыскной деятельности» на две, предусматривающие основания для проведения оперативно-розыскных мероприятий как фактическую информацию и поводы - оперативно-служебные документы, содержащие мотивированные решения об осуществлении оперативно-розыскных мероприятий. Подводя итоги, автор акцентирует внимание на необходимости значительной доработки статьи оперативно-розыскного закона, предусматривающей основания для проведения оперативно-розыскных мероприятий, подчеркивает, что основания проведения оперативно-розыскных мероприятий должны соответствовать задачам ОРД, предусмотренным Федеральным законом «Об оперативно-розыскной деятельности» и ст. 84 Уголовно-исполнительного кодекса Российской Федерации, а также предлагает структуру изменений статьи 7 Федерального закона «Об оперативно-розыскной деятельности». The problem of the need to improve the legislative regulation of the grounds for conducting operational-search measures has been raised. On the basis of an earlier analysis of scientific works, the author’s definition of this concept is formulated: the circumstances provided for by the operational-search law that are relevant to the solution of the tasks of the operational-search activity, explaining the reason for the implementation of the operational-search measures. Using the points of view of many well-known scientists in the field of the theory of operational-search activity, the author draws attention to the numerous gaps and contradictions of the Federal Law “On operational-search activity” in terms of the grounds for conducting operational-search measures. The author joins the opinion expressed earlier in the scientific literature that it is necessary to divide the current article 7 of the Federal Law “On Operational-Search Activity” into two, providing grounds for conducting operational-search measures as factual information and reasons - operational-official documents containing motivated decisions implementation of operational search activities. Summing up, the author emphasizes the need for a significant revision of the article of the operational-search law, which provides the basis for conducting operational-search activities, emphasizes that the bases for conducting operational-search activities must comply with the objectives of the OSA provided for by the Federal Law “On Operational-Search Activities” and Art. 84 of the Penitentiary Code of the Russian Federation, and also proposes a structure of changes to Art. 7 of the Federal Law “On Operational-Search Activities”.

On the issue of the public order concept in the context of criminal law qualification and differentiation of crimes from administrative offenses

2020 ◽  
pp. 122-134
Author(s):  
Vladimir Kokorev
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Public Order ◽  
Normal Functioning ◽  
Public Places ◽  
The Public ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Points Of View ◽  
Definition Of

We consider the concept of "public order". We emphasize that the protection of public order is reflected in a number of provisions of the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. Based on doctrinal points of view, a list of acts that infringe on public order is established, since not all the norms of these Codes specify that they are aimed at protecting public order from unlawful infringements. At the same time, the legislator does not propose its interpretation, although a number of regulatory legal acts regulating the protection of public order are adopted. Therefore, based on doctrinal points of view, we propose the definition of this concept: public order is expressed in the observance by individuals of the norms of laws, morality in public places, ensuring public peace, the inviolability of the person and the normal functioning of government bodies and local self-government, the activities of public organizations and legal entities. In addition, in the scientific literature there is a position that any crime violates public order (consequently, this also applies to administrative offenses), but based on judicial practice, we conclude that when committing other crimes and offenses that are not related to violation of public order, they do not indicate a violation of public order, and applicable to the analyzed acts there is not always any specification – what exactly is expressed in violation of public order.

To the question of the formal and material elements of crimes provided for in articles of the Criminal code of the Russian Federation related to the spread of infection

2020 ◽  
Author(s):  
Alexandr Bozhchenko ◽  
Yuliya Khrustaleva ◽  
Yuri Panchuk
Keyword(s):  
Causal Relationship ◽  
Russian Federation ◽  
Criminal Code ◽  
Conceptual Apparatus ◽  
Coronavirus Infection ◽  
The Russian Federation ◽  
Points Of View ◽  
Legislative Amendments ◽  
Spread Of Infection

The article deals with objective and optional features of crimes with material and formal composition, with an emphasis on crimes that are more or less associated with the spread of infection. Attention is drawn to the fact that crimes with a formal composition do not require the establishment of a causal relationship. Various points of view on “danger” are considered as one of the fundamental criteria used in the qualification of crimes. The author emphasizes the ambiguity of the content of this concept, as well as the concepts of “threat”, “significance”, “mass character”, etc. It is concluded that there are gaps, ambiguities, and contradictions in the legislation and normative legal acts on terminology and conceptual apparatus in relation to the above-mentioned concepts of danger, threat, and its magnitude (significance, mass character). Legislative amendments adopted in connection with the pandemic of coronavirus infection, which led to the emergence of a formal crime under part 1 of article 236 of the criminal code of the Russian Federation, are considered. Attention is drawn to the careless form of guilt under this article, in contrast to other articles, the use of which is also not excluded in the case of infection (article 125 and article 237 of the criminal code), but provide for the intentional nature of the crime.

scholarly journals CRIMINAL-LEGAL FEATURES OF THE QUALIFICATION OF VIOLATIONS OF THE RULES OF OPERATION OF MEANS OF STORAGE, PROCESSING OR TRANSMISSION OF COMPUTER INFORMATION AND INFORMATION AND TELECOMMUNICATIONS NETWORKS (ARTICLE 274 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION)

2021 ◽  
Vol 31 (3) ◽  
pp. 489-496
Author(s):  
S.A. Styazhkina
Keyword(s):  
Russian Federation ◽  
Scientific Literature ◽  
Criminal Code ◽  
Telecommunications Networks ◽  
The Subject ◽  
The Russian Federation ◽  
Points Of View ◽  
Objective Side ◽  
Subjective Side

The article deals with the issues of qualification of violations of the rules of operation of means of storage, processing or transmission of computer information and information and telecommunications networks (Article 274 of the Criminal Code of the Russian Federation). The objective and subjective features of this corpus delicti are revealed. Special attention is paid to the problem of determining the subject of violation of the rules of operation of means of storage, processing or transmission of computer information and information and telecommunications networks. The question of the objective side of the Article 274 of the Criminal Code of the Russian Federation is considered, in particular, the rules of means of storage, processing and transmission of computer information are defined, as which the rules should be considered, both contained in regulatory legal acts and in local documents of organizations, enterprises, institutions. The author analyzes the signs of the subjective side of the violation of the rules of operation of means of storage, processing or transmission of computer information and information and telecommunications networks, which cause a lot of controversy in the scientific literature. Different points of view regarding the subject of the crime, which can be a physical sane person who has reached the age of 16, are also considered.

scholarly journals Notes as a method of legislative technique and their importance for regulation of the institution of conviction record

2021 ◽  
pp. 36-49
Author(s):  
Mariya Andreevna Malimonova
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Case Law ◽  
Criminal Code ◽  
Scientific Methods ◽  
General Scientific ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

The subject of this research is the criminal law provisions on notes as a component of legislative technique and their importance for achieving such goals. The author explores the existing approaches towards the definition of the concept and essence of notes, as well as their classification. Special attention is given to the only note from the General Part of the Criminal Code of the Russian Federation – note to Article 73, which pertains to the institution of conviction record. The goal of this work is to determine the essence and importance of the note for the development of criminal law norms dedicated to the institution of conviction record. The methodological framework of this research is comprised on the general scientific methods (analysis, synthesis, comparison), formal-legal and systematic methods, as well as the relevant case law. As a result, the author formulates the definition of the concept of notes, indicates its correlation with the criminal law norm, lists the basic types of notes used in criminal law, and describes their role. The analysis of the provisions of the Article 73 of the Criminal Code of the Russian Federation and the notes to the Article 73 revealed the new problems in legislative regulation of suspended sentence and conviction records, which prompted the author to explore these issues and offer solutions. Clarification is given to the definition of “convicts” provided in the Paragraphs “a” and “a.1” of the Part 1 of the Article 73 of the Criminal Code of the Russian Federation. Substantiation is given to the role of convict record as a separate circumstance that prevents imposition of suspended sentence. The author indicates the fact of various interpretation of the concept of “crimes against sexual integrity of minors” mentioned in the note to the Article 73 of the Criminal Code of the Russian Federation and in the construct of the qualifying element for a number of offences of the Article 18 of the Criminal Code of the Russian Federation, as well as substantiates inexpediency of unification of this definition. The scientific novelty consists in proposing the new wording for the purposes of the Article 18 of the Criminal Code of the Russian Federation, which the author believes should be enshrined in the new note to the Article 131 of the Criminal Code of the Russian Federation.

Criminal-Legal Characteristics of Encroachment on the Health, Personal Integrity, Honor and Dignity of a Representative of the Authorities

2021 ◽  
pp. 96-103
Author(s):  
N. Yu. Borzunova ◽  
O. S. Matorina ◽  
E. P. Letunova
Keyword(s):  
Russian Federation ◽  
Statistical Data ◽  
Criminal Code ◽  
Personal Integrity ◽  
Judicial Practice ◽  
The Russian Federation ◽  
The Government ◽  
Definition Of ◽  
Criminal Legislation

The authors of the article consider the criminal- legal characteristics of crimes against representatives of the authorities, in particular, encroachment with the purpose of causing harm to the health, personal integrity, honor and dignity of a representative of the authorities. The definition of the term “representative of the authorities”is given. The main characteristics of a representative of the government are analyzed. Statistical data on the number of convictions and types of punishments in accordance with the provisions of articles of the Criminal Code of the Russian Federation (Articles 318, 319) are summarized. Examples of judicial practice are considered. The ways of improving the criminal legislation are proposed.

scholarly journals Theoretical analysis of legislative definition of the regime in correctional institutions: problems and ways to solve them

2021 ◽  
Vol 7 (1) ◽  
pp. 70-75
Author(s):  
V. E. Juzhanin ◽  
D. V. Gorban'
Keyword(s):  
Theoretical Model ◽  
Theoretical Analysis ◽  
Russian Federation ◽  
Criminal Code ◽  
Penal System ◽  
Correctional Institutions ◽  
Scientific Thought ◽  
General Part ◽  
The Russian Federation ◽  
Definition Of

The article provides a theoretical analysis of Part 1 of Article 82 of the Criminal Code of the Russian Federation, which defines the regime in correctional institutions of the Russian penal system. It is noted that this definition does not correspond to the achievements of modern penitentiary scientific thought about the regime. In particular, it is emphasized that the regime cannot provide conditions for serving a sentence, since it includes these conditions. Also, the regime cannot ensure the protection of convicts, supervision over them and separate maintenance of different categories of convicts, since, on the contrary, the latter are the means of ensuring the regime. According to the authors of the article, the legislator incorrectly uses the phrase regime of detention of convicts, meaning regime of serving a sentence, since they are different legal phenomena. It is noted that the most optimal definition of the regime is presented in the theoretical model of the general part of the new Criminal Code of the Russian Federation, prepared by a group of authors, but the authors also subjected this definition to some adjustments.

scholarly journals THE PROBLEM OF DETERMINING THE LEGAL REGIME OF “DISPUTED” REAL ESTATE: THEORETICAL AND PRACTICAL ASPECTS

2021 ◽  
pp. 19-24
Author(s):  
N.A. Pronina ◽  
T.N. Platunova ◽  
S.O. Kostyakova
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Law ◽  
Property Right ◽  
Legal Regime ◽  
Land Plot ◽  
Legal Definition ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article raises the following topical problems currently inherent in the institution of real estate in theRussian Federation: the unsuccessful legal definition of a real estate object, enshrined in Art. 131 of the CivilCode of the Russian Federation; qualification of objects as immovable and, accordingly, delimitation of themfrom movable ones; the emergence of objects with a controversial legal regime; the need to move from themodel of “plurality” to the model of “unity” of real estate objects. Also, the authors of this article analyzea number of approaches aimed at resolving the above problems and the possible consequences (both positiveand negative) of their implementation in practice, put forward their views and offer their own solutionto these problems. A variant of the legalization of “disputable” objects is proposed by introducing the rightof construction into the civil law of the Russian Federation as a limited property right to use a land plot withthe extension of this right to everything that is being built on such a land plot. The examples of legislativeregulation of the right to build in the civil law of pre-revolutionary Russia are considered, the elements of theright to build in the current law of the Russian Federation are revealed.

scholarly journals Problems of the Criminal Law Assessment of Involvement in Prostitution and the Organization of This Activity Through the Use or the Threat of Violence

2019 ◽  
Vol 13 (6) ◽  
pp. 941-950
Author(s):  
Oleg Gribunov ◽  
Gennady Nebratenko ◽  
Evgeny Bezruchko ◽  
Elena Millerova
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Sex Industry ◽  
Social Phenomenon ◽  
Multiple Dimensions ◽  
The Social ◽  
The Russian Federation ◽  
Definition Of ◽  
Sexual Services

The authors examine the specific features of criminal law assessment of involvement in prostitution and the organization of this activity through the use or the threat of violence. At the beginning, they stress the urgency of counteracting the social phenomenon of prostitution, analyze the very concept of «prostitution», its debatable and problematic aspects, because it is impossible to offer a correct qualification of criminal actions connected with prostitution (crimes under Art. 240 and 241 of the Criminal Code of the Russian Federation) without determining the boundaries of providing sexual services specifically referring to the term «prostitution». It is concluded that the key problem for determining the scope of sexual actions described by the term «prostitution» is the lack of an official definition of this term in Russian legislation as well as a wide variety of services in the modern sex industry. The authors state that the understanding of prostitution as a historical social phenomenon as a situation when a woman provides sexual services to different men by performing sexual acts with them for previously discussed material compensation is outdated and does not reflect the multiple dimensions of modern prostitution. While researching the issues of qualifying criminal acts connected with prostitution and involving the use or the threat of violence within the framework of this article, the authors have analyzed the work of both Russian and foreign scholars and studied examples of investigation and court practice. They examine the problems of legal assessment of criminal law categories «violence» and «the threat of using violence» regarding publically dangerous actions connected with the involvement in prostitution and the organization of this activity. The authors present the criteria of differentiating between corpus delicti where such actions are criminally punishable and other corpus delicti, as well as the cases that require qualification for multiple crimes. The results of this research allowed the authors to work out and present recommendations on qualifying criminal actions connected with prostitution and involving the use of the threat of violence.

Sign in / Sign up

Export Citation Format

Share Document