scholarly journals Foreign experience in legal regulation of extrajudicial forms of protection of an individual’s rights and freedoms, excluding the criminality of the act

2021 ◽  
Vol 12 (1) ◽  
pp. 144-154
Author(s):  
Alexander М. Smirnov ◽  
◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Legal Practice ◽  
State Response ◽  
Foreign Countries ◽  
Scientific Attention ◽  
The Right ◽  
The Given

The article describes the provisions of the sources of criminal law of some foreign countries regarding the regulation of extrajudicial forms of protection of an individual’s rights and freedoms, excluding the criminality of the act. The author refers to these forms as a necessary defense, causing harm to the person who committed the crime, and extreme necessity. The article discusses the possibility of implementing the provisions of these sources in Russian criminal law to improve the state response to the implementation of these forms. The author comes to the conclusion that the most positive and constructive features of legal regulation in foreign countries, extrajudicial forms of protection of an individual’s rights and freedoms while excluding the criminality of the act, deserve scientific attention and consideration of their implementation in domestic criminal law and legal practice. The main features consist of the following: the conditions for the onset of the right to necessary defense, extreme need and infliction of harm during the detention of a person who has committed a crime, and the grounds for exceeding it; taking into account the situation when determining the legitimacy of the given circumstances; allocation of privileged conditions under which a person is either exempted from criminal liability or not exempted from it, but can count on mitigation of punishment; criminal prosecution for actions if absolutely necessary only if they have resulted in more harm than the harm prevented; regulation of legal and factual error with the necessary defense and extreme necessity; legal regulation of the conditions for the use of weapons in the implementation of these forms; holding accountable those who provoked the necessary defense; the emergence of the right to necessary defense of the person whose rights are being encroached upon.

scholarly journals The History of the Development of the French Laws on Criminal Liability of Legal Entities

2018 ◽  
Vol 1 ◽  
pp. 46-56
Author(s):  
Aleksandr V. Fedorov ◽  
◽  
Mikhail V. Krichevtsev ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Economic Crime ◽  
Penal Code ◽  
Criminal Prosecution ◽  
History Of ◽  
The Law ◽  
Legal Entities

The article reviews the history of development of French laws on criminal liability of legal entities. The authors note that the institution of criminal liability of legal entities (collective criminal liability) dates back to the ancient times and has been forming in the French territory for a long time. Initially, it was established in the acts on collective liability residents of certain territories, in particular, in the laws of the Salian Franks. This institution was inherited from the Franks by the law of the medieval France, and got transferred from the medieval period to the French criminal law of the modern period. The article reviews the laws of King Louis XIV as an example of establishment of collective criminal liability: the Criminal Ordinance of 1670 and the Ordinances on Combating Vagrancy and Goods Smuggling of 1706 and 1711. For the first time ever, one can study the Russian translation of the collective criminal liability provisions of the said laws. The authors state that although the legal traditions of collective liability establishment were interrupted by the transformations caused by the French Revolution of 1789 to 1794, criminal liability of legal entities remained in Article 428 of the French Penal Code of 1810 as a remnant of the past and was abolished only as late as in 1957. The publication draws attention to the fact that the criminal law codification process was not finished in France, and some laws stipulating criminal liability of legal entities were in effect in addition to the French Penal Code of 1810: the Law on the Separation of Church and State of December 9, 1905; the Law of January 14, 1933; the Law on Maritime Trade of July 19, 1934; the Ordinance on Criminal Prosecution of the Press Institutions Cooperating with Enemies during World War II of May 5, 1945. The authors describe the role of the Nuremberg Trials and the documents of the Council of Europe in the establishment of the French laws on criminal liability of legal entities, in particular, Resolution (77) 28 On the Contribution of Criminal Law to the Protection of the Environment, Recommendation No. R (81) 12 On Economic Crime, the Recommendation No. R (82) 15 On the Role of Criminal Law in Consumer Protection and Recommendation No. (88) 18 of the Committee of Ministers to Member States Concerning Liability of Enterprises Having Legal Personality for Offences Committed in the Exercise of Their Activities. The authors conclude that the introduction of the institution of criminal liability of legal entities is based on objective conditions and that research of the history of establishment of the laws on collective liability is of great importance for understanding of the modern legal regulation of the issues of criminal liability of legal entities.

scholarly journals Draft Law on Criminal Misconduct given the German Experience of Legal Regulation

Lex Russica ◽  
2021 ◽  
pp. 133-141
Author(s):  
Ya. M. Ploshkina ◽  
L. V. Mayorova
Keyword(s):  
Criminal Liability ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Case ◽  
Criminal Prosecution ◽  
Criminal Offense ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Right ◽  
A Minor

The paper considers the second attempt made by the Supreme Court of the Russian Federation in terms of introducing the concept of criminal misconduct into the Russian criminal and criminal procedure legislation, examines the goals of its introduction. The authors conclude that the introduction of a criminal offense in the draft law No. 1112019-7 will entail the need to review some approaches in Russian law: the legal nature of the crime, the ratio of a criminal offense with a minor act and an administrative offense, the elements of a crime with administrative prejudice, the principle of justice. It seems possible to achieve procedural effectiveness, reduce the burden on judges and protect the rights of victims without introducing a criminal offense within the existing criminal and criminal procedural mechanisms related to exemption from criminal liability and expansion of non-rehabilitating grounds for termination of a criminal case or criminal prosecution. It seems possible to use the already established categorization of crimes in relation to crimes of small and medium gravity. In terms of expanding the grounds for terminating a criminal case or criminal prosecution, it is appropriate to use the experience of the German legislator, which provides for the possibility of terminating criminal prosecution on grounds of expediency when the accused fulfills various duties and regulations assigned to him. In German criminal procedure law, the termination of criminal prosecution on grounds of expediency when assigning duties or prescriptions to the accused is the right of the relevant officials and bodies, and not their obligation, since in fact it is an alternative to criminal prosecution. This will allow it to be terminated at a certain stage in the case when there are all legal grounds for criminal prosecution.

scholarly journals Protection of the labor rights, freedoms and social interests in the criminal law: experience of foreign countries

2020 ◽  
pp. 32-35
Author(s):  
Tetiana LYSKO
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Labor Rights ◽  
Legal Analysis ◽  
Labour Rights ◽  
Foreign Countries ◽  
Social Interests ◽  
Labour Legislation ◽  
Criminal Legislation

The analysis of certain points of the criminal legislation of the foreign countries, which provide protection of labour rights, freedoms and social interests, is made in the paper with the help of comparative legal analysis. Despite the quite wide legal regulation of labour relations in all countries in the world, the special criminal law protection of labour rights has remained a feature of "eastern" countries of the continental family of law mainly, the so-called post-socialist family of law. The analysis of criminal legislation of foreign countries regarding criminalization of the violation of labour rights of a person is conducted in the paper. Comparative-legal analysis allows defining general approaches to formation of labour rights of employees, including in the sphere of contractual relationship. The most similar and corresponding to the national criminal legislature are the Criminal codes of Spain an Polish Republic, which establish criminal liability for violation of not only labour legislation in force, but also conditions of individual labour acts (agreements, contracts etc.). It is stated in the text that the protection of labour rights in the modern legislation of foreign countries often has fragmentary, unsystematic nature. The violation of labour safety rules is most often regulated in the criminal legislation of foreign countries. Other types of violation of the labour legislation are regulated with arbitration under administrative or civil legislation. The drawbacks of the fatherland`s legislation are mentioned and the main positive improvements in this sphere after adoption of the Criminal Code of Ukraine in 2001 are emphasized. It was made the conclusion that the list of crimes against labour rights, which are provided by modern criminal legislations, is strong enough and has specific features. The list mentioned above could be the target for improving Ukrainian criminal legislation in certain cases. Therewith it is important to remember that formation of the legislation in the sphere of the protection of labour rights, freedoms and social interests directly depends on the development of the regulatory legislation. It is the clarity and certainty of blanket norms that will become the fundamental basis for the formation of effective criminal law protection of labour rights, freedoms and interests.

scholarly journals The criminal responsibility for defamation of knowingly innocent

2021 ◽  
Vol 10 (44) ◽  
pp. 241-251
Author(s):  
Vira Navrotska ◽  
Oksana Bronevytska ◽  
Galyna Yaremko ◽  
Roman Maksymovych ◽  
Vita Matolych
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Scientific Article ◽  
Criminal Prosecution ◽  
Innocent Person ◽  
Criminal Proceedings ◽  
Self Disclosure ◽  
Procedural Law ◽  
The Right

The scientific article analyzes the acute discussion in law enforcement practice and procedural science of the problem of the possibility of criminal prosecution of a suspect, accused of defaming a knowingly innocent person in the commission of a crime. The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts). A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical, historical, comparative, dogmatic (formal-logical), system-structural analysis, modeling. It is substantiated in the article that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure. It is also proved that both freedom from self-disclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law. We stated that the suspect or accused should be liable for misleading the court and pre-trial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability.

scholarly journals Violating the Confidentiality of Adoption: Problems of Implementing a Complex Law Mechanism in the Russian Federation

2018 ◽  
Vol 12 (6) ◽  
pp. 817-825
Author(s):  
Svetlana Kornakova ◽  
Elena Chigrina
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Criminal Code ◽  
Constitutional Rights ◽  
Democratic State ◽  
Priority Task ◽  
The Russian Federation ◽  
The Right

The priority task of any democratic state is safeguarding the interests of children, including the right of every child to live in a family. Adoption of orphans or children deprived of parental care is becoming more and more common in present-day Russia, which makes the issue of legal regulation highly relevant. The article examines the problems of implementing a complex legal mechanism that regulates the protection of the confidentiality of adoption and imposes criminal liability for violating it. It should be acknowledged that there are diverse approaches to the problem of criminal law protection of the confidentiality of adoption. The authors analyze the views of different scholars on this problem. They present a critical analysis of the viewpoint that the norm imposing liability for such a violation should be abolished and prove the social importance of preserving the confidentiality. The authors also discuss the problem areas of criminal law characteristics of crimes connected with violating the confidentiality of adoption and conduct a comprehensive research of this issue. The analysis of current legislation shows that it includes a sufficient number of norms safeguarding the confidentiality of adoption. At the same time, this legal institute includes some specific norms that need improvement, require editing or amending, which, according to the authors, stops them from performing their preventive functions. The article contains concrete recommendations on improving current Russian legislation in this sphere, in particular, on improving the clauses of Art. 155 of the Criminal Code of the Russian Federation, which establishes criminal liability in those cases where the confidentiality of adoption is violated. Besides, the authors examine the controversial issue of limiting the confidentiality of adoption because they believe that it is not lawful to deny a person who has reached majority the right guaranteed by the Constitution of the RF to learn information concerning him/herself, in this case, the right to know who their parents are. They suggest amending Art. 139 of the Family Code of the Russian Federation, which will make it possible to fully guarantee the constitutional rights of citizens.

scholarly journals Exemption of person from criminal liability and correlation with the principle of presumption of innocence

Legal Ukraine ◽  
2020 ◽  
pp. 44-50
Author(s):  
Mariia Sirotkina
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Effective Means ◽  
Case Law ◽  
Initial Position ◽  
Criminal Prosecution ◽  
Presumption Of Innocence ◽  
Guilty Verdict ◽  
Judicial Practice ◽  
The Right

This article examines the institution of exemption from criminal liability as an alternative to criminal prosecution and correlation with the principle of presumption of innocence on the basis of current criminal procedure legislation, scientific researches and judicial practice (case law). It is established that the initial position of scholars, who adhere to the opinion of contradiction of the institution of exemption from criminal liability with the principle of presumption of innocence, is that, in itself, the fact of exemption from criminal liability indicates a guilty plea and requires sentencing in accordance with Part 1 of the Article 62 of the Constitution of Ukraine. It was found out that reference of some scholars to commitment of a crime by a person is possible only due to availability of guilty verdict, not a court ruling. Because, there are many norms in legislation which may restrict certain citizens’ rights on the basis of ceasing a criminal case under «non-rehabilitative» circumstances. Other ones propose to abandon the institution of exemption from criminal liability in general and advocate expanding the scope of the institution of release from punishment, improving other means of criminal law regulation of the crime which is established by a guilty verdict of a court. It is being proved that the principle of presumption of innocence while exempting from criminal liability is not restricted: the prescriptions of presumption of innocence should be assessed, firstly, as not included into the mechanism of criminal liability, and secondly – as criminal law measures which are an alternative to punishment. Exemption of a person from criminal liability remains to be an effective means to resolve a criminal law dispute in cases prescribed by law. A person who has committed a criminally punishable act is, in no way, limited in their rights, much less in the right to implement the principle of the presumption of innocence. Key words: alternative, liability, exemption (release), punishment, presumption of innocence.

scholarly journals Special Confiscation as a Measure of Criminal Law under Ukrainian Legislation

2020 ◽  
Vol 14 (1) ◽  
pp. 19
Author(s):  
Tetiana Nikolaienko ◽  
Viktoria Babanina ◽  
Tetiana Bohdanevych
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Legal Regulation ◽  
Legal Entity ◽  
Stage Of Development ◽  
Foreign Law ◽  
Legal Nature ◽  
European Standards ◽  
The Right ◽  
Criminal Legislation

The article is devoted to the study of special confiscation as a measure of criminal law, other than punishment, which was introduced into the legislation of Ukraine on the way of transformation and reformation of the institution of confiscation of property. The study found that the emergence of special confiscation was dictated primarily by Ukraine's choice of European integration and the need to fulfil its obligations to bring domestic criminal law in line with European standards and international legal practice in combating crime. The article notes that today the confiscation of property remains one of the most controversial measures of criminal law in both domestic and foreign law. Traditionally, in the criminal law of Ukraine, this measure played the role of one of the types of punishment. However, at the present stage of development of criminal law, the legal regulation of forced confiscation of property has undergone significant changes. Currently, this is not only a form of criminal liability, but also different from the latter, another measure of criminal law, which manifests itself in three forms, namely as: 1) special confiscation of property of an individual; 2) confiscation of property of a legal entity; 3) special confiscation of property in respect of a legal entity. The article analyzes the provisions of the current criminal legislation of Ukraine on the regulation of special confiscation as another measure of criminal law and considers the main problematic aspects of this institution in the doctrine of criminal law of Ukraine. The correlation between general confiscation and special confiscation was revealed in the article. The conclusion was drawn that these two types of confiscations are different in legal nature. Confiscation of property is a type of additional punishment, and special confiscation of property is an independent type of other measures of a criminal law nature. The main difference between the investigated institutions is that their application seizes property of different nature, namely: the subject of confiscation of property is property that belongs to the convict on the right of ownership, and in the case of special confiscation, property related to the commission of a crime is subject to confiscation.

scholarly journals Reflection of the Phenomenon of Freedom in Categories of Criminal Law

2020 ◽  
pp. 32-41
Author(s):  
Lyubov Lobanova ◽  
Alexey Rozhnov ◽  
Larisa Larionova
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Personality Development ◽  
Legal Regulation ◽  
Criminal Code ◽  
Positive Law ◽  
The Many ◽  
The Individual ◽  
The Right

Freedom is a natural-legal value that makes up the essence of human nature and therefore it is innate. The latter determines a research interest in how freedom in all the variety of its essential features (freedom, choice, freedom of will, boundaries of freedom, independence of an individual, etc.) manifests itself in various forms of human life, including such a segment of positive law as criminal law. Being a guarantee of personality development, allowing it to break out of the circle of diverse social connections determining its behavior, freedom, nevertheless, has certain limits of its activity. The establishment of these boundaries is necessary to ensure the freedom of each person so that the freedom of one does not become the non-freedom of the other. These boundaries are set by all positive law, including criminal law. Hence, ensuring personal freedom should be the goal of criminal law-making and criminalization of dangerous forms of human behavior. However, ensuring freedom and educating a person in the spirit of a conscious and responsible choice is not the same thing. Therefore, mixing or combining these goals in criminal law is contrary to the goals of legal regulation and testifies to the right of paternalism, incompatible with the purpose and possibilities of law in general and criminal law in particular. The realization of freedom outside is the act of a person, which is the result of a conscious choice of one of the many options for the behavior of the individual as a rational being. Consequently, a set of conscious behaviors themselves, as well as criminal ones which have not gone beyond the limits of its mental activity, i.e. not taken place in the act, under no circumstances can be declared criminal. Hence, the authors once again emphasize that the occurrence and revealing intent to commit a crime are indifferent to the criminal law and are outside its scope. Freedom as a choice embodied in a person's deed is ensured by the establishment of norms in criminal law aimed at protecting external freedom. The latter, through criminal law, legally guarantees an individual the possibility of unimpeded movement, choice of place of residence, place of stay, acting in this capacity as a prerequisite for the realization of freedom in its anthropological dimension. But human freedom manifests itself most vividly as a sign of guilt, which is an indispensable sign of any corpus delicti – the only basis for criminal liability and, therefore, the most serious personality restrictions. It should be noted that the principle of guilt (liability for guilt) is enshrined in the criminal law (Article 5) among the fundamental principles of the industry. Subject to Art. 5 of the Criminal Code of the Russian Federation criminal liability is possible only if there is guilt as a conscious-volitional attitude of a person to the deed and its consequences.

scholarly journals Extrajudicial Forms of Protecting Rights and Freedoms of a Person in the Field of Criminal Law Relations: Conceptual Aspects and Improvement of State Response

2021 ◽  
Vol 15 (2) ◽  
pp. 210-219
Author(s):  
Alexander Smirnov ◽  
Andrey Santashov
Keyword(s):  
Social Relations ◽  
Criminal Law ◽  
Legal Status ◽  
Criminal Liability ◽  
Cultural Development ◽  
Psychological State ◽  
Criminal Prosecution ◽  
Russian Society ◽  
Self Defense ◽  
Legal Forms

The article describes the conceptual basis for a new special research theory — extrajudicial forms of protecting rights and freedoms of a person in the field of criminal law relations. The authors introduce the concept of these forms and their system consisting of legal and non-legal forms of such protection. It is concluded that the reaction of the state to the implementation of legal extrajudicial forms of protecting rights and freedoms of a person in the field of criminal law relations should be improved with the purpose of ensuring greater justice when making decisions on criminal prosecution for the self-defense of the legal status of a person in the analyzed sphere of relations. The authors offer a number of suggestions on changes and amendments to the Criminal Code of the Russian Federation that would improve the effectiveness of this reaction. On the other hand, non-legal forms of self-defense in the field of criminal law relations should be prevented. The authors present a list of factors determining the existence of these forms in the Russian society, some of which, due to certain circumstances both in the past and present period of the deve­lopment of Russian state and society, have an «excusable» character. These factors include both global (the spread of various discrimination practices, ideas of extremism and religious radicalism; the escalation of violence) and national factors (historical predetermination of state and public development; features of cultural development of the Russian society; specifics of the implementation of state policy and public administration activities; drawbacks of criminal law regulation of social processes and law enforcement activities; destructive practices of social relations; moral and psychological state of the society; influence of propaganda; defective educational and pedagogical influences, etc.). The authors also present a system of preventive measures aimed at eradicating non-legal forms of the analyzed extrajudicial protection. This system includes measures of developing a state reaction to crimes that would correspond to social expectations, ensuring a greater strictness of criminal law, unavoidability of prosecution, as well as measures of moral rehabilitation of the Russian society, raising the level of its legal conscience and culture. The authors suggest the introduction of a norm that establishes criminal liability for usurping the power of the court connected with the administration of justice.

Criminal law measures to combat provocation of crimes and falsification of criminals

2021 ◽  
pp. 127
Author(s):  
Viktor N. Borkov
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal Status ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Aspects ◽  
Theory And Practice ◽  
Criminal Prosecution ◽  
Actual Problem ◽  
The Individual

The article examines the criminal-legal aspects of the actual problem of protecting the inviolability of the individual from the unacceptable activity of state representatives in the exercise of law enforcement functions. Topical issues for theory and practice of the legal nature of the provocation of crime and the falsification of criminals remain debatable. There are no unified approaches to the qualification of provocative and inflammatory actions and cases of "throwing" objects to citizens, for the turnover of which criminal responsibility arises, there is no theoretical justification for the criminal legal status of persons provoked to commit a crime. The article shows that the qualification of common cases of provocation of crimes and falsification of criminals according to the norms providing for liability for abuse of official authority, falsification of evidence or the results of operational investigative activities should be recognized as not accurate. At the same time, responsibility for these actions committed by subjects who are not officials, and without the participation of the latter, has not been established at all. The author proposes a draft criminal law provision providing for liability for inducing to commit a crime or its staging in order to illegally create grounds for criminal prosecution. The paper questions the approach according to which a person provoked by law enforcement officers to commit a crime is not subject to criminal liability regardless of the specifics of the encroachment.

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