scholarly journals Unconstitutionality of articles 366-1, 368-2 of the criminal code of Ukraine: irony of fate or defects of the legislative process

2021 ◽  
pp. 102-110
Author(s):  
A.S. Habuda
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Legislative Process ◽  
Constitutional Court ◽  
Inaccurate Information ◽  
Control Department

The fight against corruption in Ukraine is giving rise to new ways of combating this phenomenon, new anti-corruption legislation is often being adopted and improved. Thus, among other things, in 2011 the Ukrainian parliament introduced criminal liability for illegal enrichment, and in 2014 – for declaring questionable information, supplementing the Criminal Code in accordance with Art. 368-2 and Art.366-1. However, despite their long-term duration in the structure of the criminal law mechanism for combating corruption, they have not become effective tools of anti-corruption struggle. Problems of application of Articles 366-1, 368-2 have been admitted from the very moment of their introduction in action as some serious defects in the construction of these norms were placed in the course of legislative process. In the end, based on the decision of the Constitutional Court of Ukraine, these articles expired. Given that the purpose of the article is to investigate the process of legislation and to establish the reasons for the adoption of deliberately ineffective rules on the declaration of inaccurate information and illicit enrichment. The scientific novelty is that the study indicates the inability of the Verkhovna Rada of Ukraine, which includes the Institute of legislation, scientific and expert management, legal management, the department of relations with the judiciary, the control department and other units, to ensure quality at the appropriate level of results of legislative work. These "precautionary institutions" were unable to prevent the development, adoption of imperfect and knowingly unconstitutional laws, as evidenced by examples of the introduction of liability under Articles 366-1, 368-2 of the Criminal Code and the introduction of repeated manipulative changes, after the entry into force.

scholarly journals CRIMINAL LIABILITY FOR THE DISSEMINATION OF FALSE INFORMATION DURING THE PANDEMIC: QUESTIONS OF THEORY AND PRACTICE

2021 ◽  
Vol 31 (1) ◽  
pp. 81-89
Author(s):  
A.A. Shutova ◽  
M.A. Efremova ◽  
A.A. Nikiforova
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Theory And Practice ◽  
False Information ◽  
Law Enforcement Agencies ◽  
Inaccurate Information ◽  
Forensic Practice ◽  
Administrative Code

This publication provides an overview of the current domestic legislation providing for responsibility for the dissemination of false information in the conditions of the pandemic of a new coronavirus infection (COVID-19) (Articles 2071 and 2072 of the Criminal Code of the Russian Federation, Article 13.15 of the Administrative Code), problems arising in the process of applying these norms. The authors pay close attention to the existence of technical and legal errors in criminal law norms, as well as to the existence of sectoral competition between administrative and criminal laws in forensic practice. The present article attempts to study the elements of the corpus delicti that cause the most difficulties among law enforcement agencies and specialists in the field of criminal law doctrine. In addition, attention is paid to foreign experience in countering such criminal acts. The scientific study also reviews the available explanations of the highest court published during the epidemic, including those affecting the legal assessment of crimes under Art. 2071 and 2072 of the Criminal Code. Based on the research carried out, including the study of law enforcement materials, measures are proposed to improve the existing legislation in the field of combating the dissemination of inaccurate information about coronavirus and its practice.

scholarly journals Acts of the Russian Federation Constitutional Court in the context of criminal law linkages

2021 ◽  
Vol 118 ◽  
pp. 03003
Author(s):  
Vladimir Pavlovich Konyakhin ◽  
Tatyana Yurievna Batyutina ◽  
Ruslan Georgievich Aslanyan ◽  
Manas Kapasovich Intykbaev
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Optimal Algorithm ◽  
Criminal Liability ◽  
Criminal Code ◽  
Constitutional Court ◽  
Criminal Cases ◽  
Scientific Methods ◽  
Legal Provisions ◽  
The Russian Federation

The regulatory certainty of the provisions of the Criminal Code of the Russian Federation is ensured by the presence of systemic hierarchical links between different legal prescriptions, including of the other-branch affiliation. Since the Russian legislation does not provide for the authentic interpretation of federal laws, the Russian Federation Constitutional Court plays an important role in the resolution of complicated issues of enforcement of the Criminal Code of the Russian Federation. As a rule, the doctrine gives a characteristic of particular decisions taken by it through the prism of problems of classification of specific crimes. However, proceeding from the growing scientific interest in interdisciplinary research, it seems necessary to accumulate the major legal provisions of the said court in terms of enforcement of the criminal law, with regard for its inter-sectoral bonds. The purpose of the research is to generalise the conclusions of the Russian Federation Constitutional Court on such fundamental issues as the grounds for criminal liability, timeframe validity of a criminal law, differentiation between crimes and administrative offences, prejudgement – and search of the optimal algorithm for their resolution in the future on this basis. The methodological basis of the study is represented by the general scientific methods of cognition: dialectical and systemic-structural; and as concerns the specific scientific methods – by the legalistic method. Following the analysis of a number of resolutions and rulings of the Russian Federation Constitutional Court for the period 2003-2020, an algorithm was developed for enforcement of the regulatory prescriptions of the Criminal Code of the Russian Federation in the context of its inter-branch linkages. It was found out, on the basis of the study of sentences passed by the Russian courts, that the most common mistakes of law enforcement officers in extrapolating the legal provisions of the Russian Federation Constitutional Court within the framework of particular criminal cases are connected with incorrect interpretation of factual circumstances as well as the facts of transcending the content of the relevant norms of the Criminal Code of the Russian Federation.

scholarly journals Unconstitutionality of criminal liability for filing inaccurate information in Ukraine: сritical legal analyses

2021 ◽  
Vol 39 (69) ◽  
pp. 133-145
Author(s):  
Andrii Vozniuk ◽  
Dmitriy Kamensky ◽  
Olexandr Dudorov ◽  
Roman Movchan ◽  
Andriy Andrushko
Keyword(s):  
Research Methods ◽  
Rule Of Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Research ◽  
Social Harm ◽  
The Rule Of Law ◽  
Inaccurate Information ◽  
Social Harmfulness

The investigation reveals shortcomings in the arguments of the Constitutional Court of Ukraine on the recognition of article 366-1 of the Criminal Code as not being in conformity with the Constitution, in terms of:(a) the court's lack of authority to criminalize socially dangerous acts; (b) lack of argumentation on the absence of social harm in the non-submission of a declaration and in the presentation of inaccurate information; (c) positive foreign experience; (d) conformity of article 366-1 of the Criminal Code of Ukraine with the principle of the rule of law. The article employs a set of legal research methods, including terminological, systemic-structural, formal-logical, and comparative-legal. It is stressed that:(a) the criminalization of a socially harmful act is a matter for the legislator, not the Constitutional Court of Ukraine, to decide; (b) the decision does not present or refute any argument on the element of social harmfulness relating to the non-submission of a declaration and the declaration of inaccurate information. On the basis of the investigation, it has been concluded that the decision of the Constitutional Court on the recognition of article 366-1 of the Criminal Code does not comply with the Constitution and has not been sufficiently substantiated.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Killing through negligence and its distinction with other kinds of murder

2021 ◽  
Author(s):  
Vladimir Myslivyy ◽  
Angelina Mykyta
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Criminal Code ◽  
The State ◽  
Sufficient Information ◽  
Main Body ◽  
Common Features ◽  
Criminal Offenses ◽  
The Common

Problem setting. According to Art. 27 of the Constitution of Ukraine, everyone has an inalienable right to life, no one can be arbitrarily deprived of life, and the state, in turn, is obliged to protect human life. Protection of a person’s life, as a duty of the state, is manifested in the establishment of criminal liability, enshrined in Section II “Criminal offenses against life and health of a person” of the Criminal Code of Ukraine, who commit socially dangerous acts. whether there are criminal offenses and what punishments they should be committed. The distinction between crimes such as premeditated murder and negligent deprivation of another’s life is important, as criminal law theory still does not have sufficient information on this issue and does not have a complete list of features of the above crimes, but we tried to identify them in our article. Target of research. Deepening their knowledge on the caution of a person’s life due to inconsistency and drawing the line between possible offenses and conditional authority, clarifying the special characteristics of the perpetrator and the victim, outlining the essential features of the perpetrator and the victim, and researching the regulation of negligent proposal of a new version of the Criminal Code of Ukraine. Analysis of resent researches and publications. The theoretical basis for the study of the problem of murder through negligence are the works of legal scholars, in particular, M. Bazhanov, V. Borisov, S. Borodin, V. Glushkov, O. Gorokhovskaya, I. Zinchenko , V. Tyutyugin, O. Us, E. Kisilyuk, V. Kuts, M. Yefimov, S. Likhova, V. Stashis, V. Shablisty and others. Article’s main body. According to Art. 3 of the Constitution of Ukraine, man, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Given this constitutional provision, the legislator should pay special attention to the criminal law protection of human life and health as the most important public relations. So it is no coincidence that considering such encroachments as one of the most dangerous in the criminal law dimension, the legislator established criminal liability for their commission in Section II “Criminal offenses against life and health” of the Special Part of the Criminal Code of Ukraine. Due to the high public danger and the high prevalence of criminal offenses against human life and health, criminal law theory and law enforcement practice are under increasing scrutiny. Thus, the analysis of judicial practice in recent years shows that, for example, among all murders (Articles 117-119 of the Criminal Code of Ukraine) the number of persons convicted of deprivation of life due to negligence is about 15 percent annually. In our opinion, it is also advisable to analyze the concept of “murder” by comparing the common and distinctive features of the offenses referred to in Art. Art. 115 and 119 of the Criminal Code of Ukraine. According to scientific results, we can conclude that these offenses have many common features. It is possible to understand the common features and preconditions for the spread of these types of offenses. Conclusions and prospects for the development. A study of issues related to the criminal law analysis of murder through negligence and its difference from other types of murder, shows that these acts encroach on the identical object, which is “human life as a set of social relations.” Unfortunately, nowadays the dynamics of offenses committed in Art. Art. 115 and 119 is intensifying, so consideration of their delimitation and characterization of their features is very important. The study examines the main features of these types of crimes, as well as analyzes some provisions of national law and proposes some adjustments to them.

Suspended Sentence and Placement in a Special Educational Institution: Features of Application and Correlation in the Context of the Systematic Nature of Criminal Law

2021 ◽  
pp. 267-271
Author(s):  
Vаleria A. Terentieva ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Liability ◽  
Educational Institution ◽  
Criminal Code ◽  
Criminal Punishment ◽  
Simultaneous Application ◽  
Closed Type ◽  
The Russian Federation ◽  
Law Regulation

The systematic nature of criminal law forms the main features of the industry, namely: normativity, universalism, that is, the absence of casuistry and obligation. The strict consistency of both the entire industry and its individual institutions allows avoiding the redundancy of criminal law regulation, clearly determining the legal status of a person in conflict with the law. However, the norms of the Criminal Code of the Russian Federation do not always meet these requirements due to defects in legal technology, and, sometimes, gaps in regulation. In practice, the courts, in an effort to minimize the above defects, sometimes resort to excessive criminal law regulation; as an example, the article gives the ratio of the application of suspended sentence and placement in a special educational institution of a closed type. The article analyzes sentences to minors in which Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation were simultaneously applied in one sentence for the same act. For a comprehensive study, the article analyzed sentences to minors held in special educational institutions of a closed type for the period from 2014 to 2020, criminal statistics posted on the website of the Judicial Department of the Supreme Court of the Russian Federation, as well as various points of view of leading legal scholars. The research methods of static observation, analysis and synthesis, the system-structural method, as well as a number of factographic methods, were used. The study develops from the general to the specific, i.e., first, systematicity is analyzed as a property of the branch of criminal law and then as a property of a legal institution, namely, the release of minors from criminal liability. Consistency as a property of the institution of exemption from criminal punishment presupposes the impossibility of intersecting elements within one institution. Special attention is paid to the legal nature of suspended sentence as the most common punishment measure for minors, and its effectiveness. Then the cases of the simultaneous application of Art. 73 and Part 2 of Art. 92 of the Criminal Code of the Russian Federation are analyzed. In the course of the study, the author examines the features of suspended sentence and placement in a special educational and educational institution of a closed type, compares these two forms of criminal liability, and highlights the differences. The conclusion is that the simultaneous placement in a special educational institution of a closed type and suspended sentence are a redundancy of criminal law regulation. The article raises the question of the need to improve the Criminal Code in terms of the development of placement in a special educational and educational institution of a closed type as a type of exemption from criminal punishment: the court is to be provided with the opportunity to control the juvenile offender’s correctional process.

scholarly journals Criminal Liability and Artificial Intelligence: Theoretical and Applied Aspects

2019 ◽  
Vol 13 (4) ◽  
pp. 564-574 ◽  
Author(s):  
Zarina Khisamova ◽  
Ildar Begishev
Keyword(s):  
Artificial Intelligence ◽  
Criminal Law ◽  
Legal Status ◽  
Industrial Revolution ◽  
Criminal Liability ◽  
Criminal Code ◽  
Design Development ◽  
Legal Personality ◽  
Active Involvement ◽  
Self Learning

The humanity is now at the threshold of a new era when a widening use of artificial intelligence (AI) will start a new industrial revolution. Its use inevitably leads to the problem of ethical choice, it gives rise to new legal issues that require urgent actions. The authors analyze the criminal law assessment of the actions of AI. Primarily, the still open issue of liability for the actions of AI that is capable of self-learning and makes a decision to act / not to act, which is qualified as a crime. As a result, there is a necessity to form a system of criminal law measures of counteracting crimes committed with the use of AI. It is shown that the application of AI could lead to four scenarios requiring criminal law regulation. It is stressed that there is a need for a clear, strict and effective definition of the ethical boundaries in the design, development, production, use and modification of AI. The authors argue that it should be recognized as a source of high risk. They specifically state that although the Criminal Code of the Russian Fe­deration contains norms that determine liability for cybercrimes, it does not eliminate the possibility of prosecution for infringements committed with the use of AI under the general norms of punishment for various crimes. The authors also consider it possible to establish a system to standardize and certify the activities of designing AI and putting it into operation. Meanwhile, an autonomous AI that is capable of self-learning is considerably different from other phenomena and objects, and the situation with the liability of AI which independently decides to undertake an action qualified as a crime is much more complicated. The authors analyze the resolution of the European Parliament on the possibility of granting AI legal status and discuss its key principles and meaning. They pay special attention to the issue of recognizing AI as a legal personality. It is suggested that a legal fiction should be used as a technique, when a special legal personality of AI can be perceived as an unusual legal situation that is different from reality. It is believed that such a solution can eliminate a number of existing legal limitations which prevent active involvement of AI into the legal space.

scholarly journals Legal Nature and Features a Continuing Crime

2021 ◽  
Vol 15 (4) ◽  
pp. 442-455
Author(s):  
Konstantin Obrazhiev
Keyword(s):  
Criminal Law ◽  
Plenary Session ◽  
Criminal Code ◽  
Destructive Effect ◽  
Legal Nature ◽  
The Supreme Court ◽  
Theory Of Crime ◽  
Objective Side ◽  
Conscious Control

The author singles out constituent features of a continuing crime: 1) a continuing crime, although legally completed, is happening continuously until its actual completion; 2) a continuing action has a complex two-element structure: the first element of the objective side of a continuing crime is the action or inaction of the guilty person that legally constitutes a crime, and the second element is the subsequent continuous behavior that «stretches» the objective side of the continuing crime in time; 3) a continuing crime is producing a non-stop destructive effect on the object of criminal law protection, and the long-term deformation of this object happens because of the action itself, not the consequences caused by it; 4) by committing a continuing crime, the person preserves conscious control over the action after its legal completion, regulates his behavior, controls the process of inflicting harm on the object of criminal law protection, which makes it possible to recognize the person as active (non-active) in the criminal law sense; 5) only a crime with a formal construct of corpus delicti can be continuing. The abovementioned features together could act as reliable criteria for determining the chronological boundaries of specific criminal actions, as a key to resolving theoretical disputes and law enforcement problems connected with classifying a certain action as continuing. The article stresses that the permanent character of a continuing crime cannot be explained through the prism of the theory of a continuing criminal condition. Such an interpretation of a continuing crime, common in Russian and foreign research, contradicts the established tenets of the classical theory of crime. Only an act in the form of action or inaction can be recognized as a continuing crime, but not a state, situation, or status. Based on this, the author gives a critical assessment of Art. 210.1 of the Criminal Code of the Russian Federation that provides for the liability for holding the highest position in a criminal hierarchy. The objective side of a continuing crime has the following manifestations: 1) continuing criminal inaction; 2) a crime legally completed by an action, and continuing through inaction; 3) continuing action. Based on this, the author states that the description of a continuing crime contained in the Decree of the Plenary Session of the Supreme Court of the USSR of March 4, 1929 No. 23 (edition of the Decree of the Plenary Session of March 14, 1963, No. 1) should be specified.

scholarly journals Criminal liability for illegal banking activities in the context of countering criminal money cashing

2020 ◽  
pp. 140-144
Author(s):  
Dmitry Ovchinnikov
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Russian Federation ◽  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Liability ◽  
Law Enforcement Officers ◽  
Criminal Code ◽  
Economic Sector ◽  
The Russian Federation

Currently, the economic sector of public relations is characterized by exceptional criminality. One of the main phenomena responsible for this is illegal money cashing. Almost every business entity considers it acceptable and even necessary to resort to various criminal schemes for obtaining unaccounted cash and tax evasion. The very type of this crime has actually become a thriving and profitable business, which consists in providing services for withdrawing funds from legal circulation. While the existing judicial and investigative practice in the issue of countering this phenomenon has not yet developed a clear answer about the need for appropriate qualifications. There are about a dozen articles of the criminal law in which law enforcement officers try to find the correct legal assessment, and at present, article 172 of the Criminal code of the Russian Federation “Illegal banking activities” deserves special attention.

scholarly journals TINJAUAN YURIDIS TENTANG GABUNGAN TINDAK PIDANA SEBAGAI HAL YANG MEMBERATKAN PIDANA Studi Kasus: Putusan Perkara Nomor:141/Pid.B/2018/PN Mrj (Pencurian)

2021 ◽  
Vol 3 (2) ◽  
pp. 212-226
Author(s):  
Failin Failin
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Deterrent Effect ◽  
District Court ◽  
Prison Sentence ◽  
Legal Certainty ◽  
The Family ◽  
Sense Of Justice

In criminal law there is no penalty if there is no wrongdoing, this basis is about the accountability of a person for the actions he has done. Therefore, in criminal law there are exceptions to such criminal liability, for example contained in Articles 48, 49, 50 and so forth. In addition, there are burdensome things that will be imposed on the accused for crimes committed, such as samenloop, recidive and so on. In the Muaro Sijunjung District Court there is one case concerning a combination of criminal acts, namely theft crimes accompanied by violence and moreover this theft is carried out among families (theft in the family). In this case the judge has decided the prison sentence for 6 (six) Years. But according to the analysis of the author there is no sense of justice for the victim because this perpetrator is the husband of the victim's child so that there is no deterrent effect for the perpetrator, the reason that there is no more theft in this family because no matter how small the crime committed by a person must be taken action in order to obtain justice and legal certainty. In principle, judges have the freedom to determine the measure of punishment to be imposed on the perpetrators of crimes, as long as it does not exceed the maximum provisions specified in the Criminal Code. Therefore, the sentencing of the accused for a combination of crimes committed by means of pure absorption Stelsel that is If a person commits several acts that are several delik each threatened with a different kind of criminal

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