scholarly journals Norm of criminal law under the draft Criminal code of Ukraine

2021 ◽  
pp. 54-61
Author(s):  
I. Mytrofanov
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Broad Sense ◽  
Structural Elements ◽  
Criminal Offense ◽  
The Rule Of Law ◽  
Structural Part ◽  
Mandatory Rule ◽  
Special Part ◽  
Proper Interpretation

The article considers the rule of law, the rule of criminal law. When studying the norm of criminal law, I rely on the fact that it is a mandatory rule of conduct for failure to commit a criminal offense under the criminal law of the Special Part of the Criminal Code of Ukraine, organically related orders, compliance with which is ensured by coercive potential criminal law influence. The norm of criminal law consists of: 1) conditions for the implementation of criminal law (hypothesis); 2) criminal law normative – obligatory legal requirement for non-commission of an act provided by the instruction of the Special Part of the Criminal Code (disposition); 3) sanction for non-compliance with these legal requirements. Mandatory requirements (rules) contained in the articles of the General and Special Parts of the Criminal Code and organically supplement (clarify) the content of the relevant structural part of the criminal law or contain procedural issues for its application and implementation. The article analyzes the hypothetical, dispositional and sanctioning dictates of the draft Criminal Code of Ukraine. It is concluded that the draft Criminal Code of Ukraine does not significantly change the approaches to understanding the rules of criminal law as a system of established (sanctioned) by the Verkhovna Rada of Ukraine and legally secured universally binding criminal law norms and organically related commands. project composition, their rights and responsibilities, tasks of the Criminal Code, legal facts, etc.), compliance with which is ensured by the coercive potential of the means of criminal law influence. The considered norm in a broad sense provides for a three-tier structure and is fixed in the criminal law. At the same time, the structural elements of the norm of criminal law in the «broad» sense are placed in the articles of both the General and Special parts of the draft Criminal Code of Ukraine. Further research should focus on understanding the concept and structure of criminal law, as it will help both the legislator and the court. Proper interpretation of the concept and structure of criminal law encourages parliamentarians to more fully and accurately reproduce in the text of the Criminal Code of Ukraine all the necessary elements of criminal law in view of the purpose of its development and adoption, and the judge, investigating judge (court) – to find, compare and understand these elements, to establish their interrelations and the legal will of the legislator fixed in this norm, and also to provide its reliable realization according to a letter of the law. This knowledge allows members of society to navigate the system of criminal law obligations for their implementation.

scholarly journals REPEATING AND RECURRENCE OF INTENTIONAL MURDER UNDER AGGRESSIVE CIRCUMSTANCES

2020 ◽  
pp. 352-361
Author(s):  
М. О. Василенко
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Criminal Record ◽  
Separate Study ◽  
Criminal Offense ◽  
Criminal Proceeding ◽  
Judicial Practice ◽  
Special Part ◽  
The Subject

In the article, the author conducted a study of recurrence and recurrence as forms of multiplicity of premeditated murder under aggravating circumstances. The relevance of this work is that this issue has not been the subject of a separate study among modern scholars of criminal law. In the work the author found that the recurrence of premeditated murder under aggravating circumstances, it is necessary to distinguish from a criminal offense under paragraph 13 of Part 2 of Article. 115 of the Criminal Code of Ukraine (premeditated murder committed by a person who previously committed premeditated murder, except for murder under Articles 116-118 of the Criminal Code of Ukraine), which is considered a qualifying (aggravating sign) premeditated murder. After all, in the case of premeditated murder by a person who has previously committed premeditated murder, with the exception of murder provided for in Articles 116-118 of the Criminal Code of Ukraine, a single crime is necessarily meant. The author also emphasizes that the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding. In addition, the paper found that recurrence and recidivism, as forms of multiplicity of premeditated murders under aggravating circumstances, are not mutually exclusive and can be used by the court as a whole. It is concluded that in judicial practice there are many cases when courts do not clarify the issue of expungement or removal of a criminal record when imposing a penalty for repeated intentional homicides in aggravating circumstances. Therefore, the solution of this issue, in our opinion, needs legislative consolidation. After all, the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding.

On the System of the Special Part of the Criminal Code of the Russian Federation

2019 ◽  
pp. 31-40
Author(s):  
Elena Shchelkonogova
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
The Rule Of Law ◽  
Law System ◽  
Special Part ◽  
General Part ◽  
The Russian Federation ◽  
Criminal Legislation

The article raises the problem of systematic interpretation of the Special Part of the Criminal Code of the Russian Federation, since fair enforcement of criminal law articles is impossible without understanding their sense intended by the legislator. One of the effective methods for identifying it is systematic interpretation of the articles of the Special Part of the Criminal Code. They are considered as elements of the system, their logical relations with each other and with the articles of the General Part of the Criminal Code are identified. Systematic consideration of the Special Part of the Criminal Code induction and deduction allowed formulating its current definition based on the fundamental difference between the rule of law and the article of the law. Identification of the systemic features of the Special Part helps distinguishing it from structure and classification. The article also pays attention to the problem of determining the various grounds for division of legislative material of the Special Part; the meaning of such concepts as «criminal legislation system» and «criminal law system» is delimited. The question is raised whether it is correct to speak about the system of crimes enshrined in the Special Part of the Criminal Code.

PROBLEM ASPECTS OF CONSTITUTIONALITY AND APPLICATION OF ART. 375 OF THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Hryhoriy Krainyk ◽  
◽  
Vitaliy Perzhul ◽  
Oleksandr Hailiunas ◽  
◽  
...  
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Legal System ◽  
Criminal Code ◽  
The Body ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
European Court ◽  
Special Part ◽  
Principles And Standards

This article is devoted to the analysis of positions of the article 375 of Criminal Code of Ukraine, which recently kept the action, while Constitutional Court of Ukraine did not make decision about it’s unconstitutionality. In work we analyzed the Constitutional Court’s decisions and practice, analyzed possible options for criminalization and decriminalization in Ukrainian criminal law. The practice of legal application about article 375 of the Criminal Code of Ukraine, exactly, the rendering by a judge of a knowingly unjust decision. The focus is on the fact that the courts are deciding these cases, in some aspects, they understand the scope of the named norm of criminal law differently, which leads to different enforcement. In this regard, we investigated diametrically opposed positions of reputable scientists regarding this norm and possible options of its new edition. Authorities also disagree with the separate opinion of the judges of the Constitutional Court of Ukraine, in regard to contradictions of the constitutional norms, which regulate the process of adopting laws to declare them unconstitutional, and the legal force of such decisions. The practice of the European Court of Human Rights is also an important part of the work, which has repeatedly noted a similar problem in the legal system of Ukraine. Therefore, apart from the constitutionality of the norm of rendering a court decision in an inappropriate manner, the work of the authors includes an important discussion of the systemic gap that exists in the context of the process of adoption and/or rejection of the law. It should also be noted that the court practice regarding article 375 of the Criminal Code of Ukraine is quite varied, which today does not make it possible to form some unified and uncontroversial approaches asto whatrole the existence of the Criminal Code's article on a judge's rendering of an unjust decision in the relevant version has had for some time. Summarizing the main points, we believe that the legislator should avoid ambiguous and controversial formulations in the disposition of the articles of the Special Part of the Criminal Code of Ukraine in future. For an effective solution of this problem there is a project, which is currently being worked on and which is called to impose liability for rendering an invalid verdict, but to do it in those kind of form, so that the body of constitutional jurisdiction would not have any claims against it in the context of unconstitutionality. Exactly this legal balance will allow us to speak about the closeness to the sphere of criminal law to the principles and standards of the rule of law, that are inherent in most states with a developed legal system.

CODIFICATION PROBLEMS OF NECESSARY DEFENSE AFFECTING ITS IMPLEMENTATION

2020 ◽  
Vol 10 (3) ◽  
pp. 155-163
Author(s):  
PETRUSHENKOV ALEXANDR ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Educational Institutions ◽  
Scientific Article ◽  
Teaching Staff ◽  
Self Defense ◽  
Special Part ◽  
The Russian Federation ◽  
Legislative Activities

Objectives. The goal of scholarly research is to develop proposals for amendments in criminal law General and Special part of Criminal code of the Russian Federation governing self-defense. The scientific article identifies legislative gaps and contradictions that hinder the effective implementation of the necessary defense and require prompt solutions. Methods. The article analyzes such concepts as “self-defense”, “public assault”, “excess of limits of necessary defense”, “violation of the conditions of lawfulness of necessary defense”, “surprise assault”, “rights defending or other persons, interests of the state”. The use of logical and comparative legal methods allowed us to develop proposals for making changes to the criminal law norms that establish the necessary defense. Conclusions. The article shows the conflicts and gaps legislative recognition of self-defense and, in this regard, the complexity of its implementation in the articles of the Special part of the Criminal code of the Russian Federation and practical application. Changes are proposed to the criminal law norms regulating the necessary defense, both in the General and in the Special part of the Criminal code of the Russian Federation. Sense. The content of the scientific article can be used by the teaching staff of higher educational institutions when teaching the course “Criminal law”. The results of the work can be useful to persons who carry out legislative activities in the field of criminal law. The leitmotif of the article can be used in the preparation of dissertation research.

Formation and development of a Special part of criminal law in the period of the X – beginning of the XX century

2021 ◽  
pp. 150
Author(s):  
Ruslan G. Aslanyan
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Institutional Structure ◽  
Historical Aspects ◽  
Literary Sources ◽  
Special Part ◽  
The Law

The article examines the historical aspects of the formation and development of a Special part of the Russian Criminal Law. The analysis is based on legal monuments of the X - beginning of the XX century and literary sources. The research is developing in three main directions: a) the ratio of the law and other forms of expression of criminal law prescriptions (here the process of transition from customs to the law as the only means of expressing criminal law norms is revealed); 2) types and system of criminal laws (here the transition from intersectoral laws to the formation of a specialized Criminal Code is shown); 3) systematization of criminal law regulations (here the issues of classification of crimes and structuring of criminal law institutions are revealed). As the main result, it is summarized that by the beginning of the XX century, the idea of creating an independent criminal law was not only implemented in the country, but also, firstly, the principle of its pandect structure was put into practice, suggesting the isolation of its Special part in the structure of the Code and, secondly, the principle of building the most Special part, based on the institutional structure of the industry and the content of goods protected by law.

ANALISIS YURIDIS TINDAK PIDANA PENGGELAPAN YANG TIMBUL DARI HUBUNGAN SEWA MENYEWA MOBIL DIKAITKAN DENGAN PASAL 372 KUHP

2016 ◽  
Vol 2 (2) ◽  
pp. 201-216
Author(s):  
Hurip Agustina ◽  
Dadang Suprijatna ◽  
Aal Lukmanul Hakim
Keyword(s):  
Rule Of Law ◽  
Criminal Responsibility ◽  
Bottom Layer ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Criminal Offense ◽  
The Rule Of Law ◽  
The Public ◽  
Criminal Offenses ◽  
Car Rental

Crime embezzlement car rentals are lately often devastating car rental owner. This is an issue where the meaning of a rule of law if the crime committed community can not be followed by the rule of law, such as crimes by way of evasion is one of the types of crimes against human wealth which is stated in Article 372 of the Criminal Code, which is a crime that does not exist inexhaustible, both from the bottom layer to the top layer of society can also be committing a criminal act embezzlement is a crime that originated from the existence of a trust in others, and that trust is lost because of the lack of an honesty. It is stated that the crime of embezzlement have a problem that is closely linked to attitudes, moral, mental, honesty and trust humans as individuals. The purpose of this study are as follows: 1) To determine and analyze the occurrence of the crime of embezzlement car rental. 2) To know and analyze the application of Article 372 of the Criminal Code the crime of embezzlement in the rental car. 3) To know and analyze the efforts of the police in preventing crime of embezzlement car lease. This study uses normative juridical approach that is used to make the description clear, systematic, transparent and precise about the facts / specific nature of the area and population which is then analyzed to obtain the desired facts. Criminal offense embezzlement rental car can be imprisoned if they meet the overall elements of the offenses charged by the public prosecutor and the offender accountable for his actions. If the offender does not meet one of the elements of which the accused, then it can not be convicted. The elements of criminal responsibility are: 1) committing illegal or criminal acts; 2) for the criminal should be able to be responsible; 3) to have a fault; 4) absence of an excuse. The conclusion from this study is the adoption of Article 372 of the Criminal Code in criminal offenses of embezzlement car rental where the incidence of criminal acts committed tenants for the rented goods belonging to the owner of the rental rights because of misuse or abuse of trust in which the crime of embezzlement are set in the provisions of Article 372 of the Criminal Code.

scholarly journals QUALIFICATION OF CRIMES AGAINST LIFE: COMPARATIVE LEGAL ANALYSIS

2021 ◽  
Vol 1 (1) ◽  
pp. 61-67
Author(s):  
Olha Peresada ◽  
Keyword(s):  
Public Relations ◽  
Criminal Law ◽  
Human Life ◽  
Criminal Code ◽  
Legal Analysis ◽  
Right To Life ◽  
Special Part ◽  
Criminal Protection ◽  
The Moment ◽  
The Right

The article considers topical issues of definition and qualification of crimes against human life in Ukraine and abroad. It is proved that the problematic issue of criminal law protection of human life is a significant differentiation of approaches to determining the moment of its onset, which reflects the medical and social criteria for the formation of an individual who has the right to life. It is shown that Ukrainian criminal law gives a person the right to life from birth, while the correct approach is to recognize the beginning of human life and appropriate criminal protection from the moment of onset 10 days after conception, which is consistent with European experience (in particular, France) and sufficiently reflects the medical features of the period of formation of a full-fledged embryo. The article also addresses the issue of the fact that Section II of the Special Part of the Criminal Code of Ukraine combines encroachment on two different generic objects - public relations for the protection of life and public relations for the protection of personal health. This provision of the criminal law of Ukraine does not correspond to the international practice on this issue. In addition, it is reasonable to believe that the two relevant categories of the object of criminal encroachment cannot be considered similar, as such an approach in certain cases can significantly complicate the classification of a criminal offense. It is emphasized that, given the exceptional importance of criminal law protection of human life, it is necessary to formulate a separate section of the Special Part of the Criminal Code of Ukraine, which covers only crimes against life as the main object of criminal encroachment.

scholarly journals Groźba popełnienia przestępstwa o charakterze terrorystycznym w ujęciu art. 115 § 20 k.k. – wybrane problemy wykładni

2019 ◽  
Vol 28 (3) ◽  
pp. 41
Author(s):  
Aneta Michalska-Warias
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Eu Law ◽  
Terrorist Threat ◽  
Special Part ◽  
New Type ◽  
The Relationship

<p>The paper discusses the concept of a terrorist threat in the light of Article 115 § 20 of the Polish Criminal Code. The author stresses the relationship between this term and the punishable threat described in the special part of the Criminal Code. The conducted analysis leads to the conclusion that the terrorist threat must be treated as a special type of the punishable threat and, as a result, many real terrorist threats may not meet the criteria of a forbidden act, e.g. because of the lack of an individualised victim. As a result, there appear serious doubts as to whether Polish criminal law meets the requirements of EU law referring to the criminalisation of terrorist threats and, therefore, the introduction of a new type of offence of a terrorist threat and some changes in Article 115 § 20 and Article 115 § 12 of the Criminal Code have been proposed.</p>

scholarly journals AGGRAVATING AND MITIGATING CIRCUMSTANCES CHARACTERIZING SUBJECTIVE SIGNS OF CRIMINAL BEHAVIOR

2019 ◽  
Vol 29 (5) ◽  
pp. 681-685
Author(s):  
V.I. Tikhonov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Behavior ◽  
Legal Regulation ◽  
Criminal Code ◽  
Special Part ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
The Impact ◽  
Subjective Side

The Institute of mitigating and aggravating circumstances is presented not only in the norms of the General part of the criminal legislation of the Russian Federation. The application of these circumstances in the construction of individual elements of a crime allows the legislator to differentiate the orientation of the criminal law influence in relation to a specific crime element or in qualifying the fact of life reality. In law enforcement practice, proving the subjective side of a crime often causes significant problems. At the same time, motivation and achievement of a specific goal of committing a crime can have both a mitigating and an aggravating effect. The subjective side has a significant impact not only on the design of the offenses of the Special Part of the Criminal Law, but also on the process of sentencing through legal regulation of circumstances mitigating or aggravating criminal punishment. In this regard, both general and mandatory features of the subject of the crime also affect the procedure for establishing guilt and determining punishment in accordance with the norms of the Criminal Code of the Russian Federation. Of scientific interest is the study of the influence of the process of legal regulation of mitigating and aggravating circumstances in terms of the impact on this process of subjective signs of criminal behavior.

scholarly journals IMPLIKASI PERUMUSAN DELIK KORUPSI DI DALAM KEBIJAKAN PEMBAHARUAN KITAB UNDANG-UNDANG HUKUM PIDANA

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (3) ◽  
Author(s):  
Syaputra Syaputra
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Criminal Code ◽  
Community Life ◽  
Reform Effort ◽  
The Rule Of Law ◽  
Draft Code ◽  
The Law ◽  
Pass Through ◽  
Sense Of Justice

The Criminal Code as a legacy of Dutch colonialism could no longer follow the dynamism of community life. It is too rigid has obliterated the sense of justice which is the goal of the creation of the law itself. This is because the articles of the Criminal Code deemed unsuitable to the development of crime and offenses increasingly complex. In the draft Code of Criminal Law, as one of the reform effort is the formulation of offenses of corruption set out in Chapter XXXII starting from Article 688 to Article 702. With the formulation of the offense of corruption and offenses positions formulated in the draft Criminal Code will disregard the Law Combating Corruption although this law of particular importance because of the substance of the articles draft Criminal Code wants to make corruption has become common crimes and do not pass through handling extraordinary. Law on Corruption Eradication cannot apply even if there is the principle of lex specialis derogat lex generalis, because of the retroactive principle that applies in the draft Criminal Code so that the decision to force the law can still be applied retroactively when the rule of law that new does not regulate the offense of criminal, so punishment can be eliminated.Keywords: Offense Corruption , Corruption , Reform of draft Criminal Code

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