On the Question of the Theoretical Foundations of Regulating Justifiable Defense in Criminal Legislation

2021 ◽  
Author(s):  
S.V. Parhomenko ◽  
Keyword(s):  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Legislative Regulation ◽  
Russian Constitution ◽  
The Subject ◽  
The Moment ◽  
The Right ◽  
Criminal Legislation ◽  
Theoretical Foundations

The article considers the problem of creating effective criminal legal guarantees for the natural human rights realization in terms of legal regulation of such a circumstance that precludes the criminality of an act, as a necessary defense. The need for legislative regulation of the justifiable defense institution is proved by its social and legal purpose, proceeding from the idea of natural law. To make balanced legal decisions on the justifiable defense regulation in criminal law, it is necessary to identify the shortcomings of the previous theoretical and legal approaches. Basing on the analysis of the federal legislation provisions and the criminal law doctrine, the author proposes a model of legislative regulation of the studied norm. At the same time, it is argued that the subject of defense is the main addressee of the normative provisions on the justifiable necessary defense, it is he who should be able to obtain full information that affects the assessment of the legitimacy of his behavior: from the law and until the moment of implementation of the act of defense, and not at the stage of investigation on the fact of its illegality. Following the letter and spirit of the Russian Constitution, the legislator, who has defined the range of acts prohibited by the Criminal Code, must determine the ways of exercising the right to defense. The solution to this problem must have a differentiated approach, taking into account the value of the protected good and the typical nature of the situation in which this good is threatened with harm.

scholarly journals Circumstances excluding the criminal act, in the criminal law of Russia and Vietnam

2020 ◽  
Vol 2020 (2) ◽  
pp. 229-240
Author(s):  
Sergey Milyukov ◽  
Andrei Nikulenko
Keyword(s):  
Public Relations ◽  
Criminal Law ◽  
Comparative Method ◽  
Legal Regulation ◽  
Criminal Code ◽  
Socialist Republic ◽  
Advantages And Disadvantages ◽  
Law Enforcement Officials ◽  
The Right ◽  
Criminal Legislation

the article describes the circumstances excluding criminality of the act in the criminal legislation of the Russian Federation in comparison with the corresponding Chapter of the criminal law of the Socialist Republic of Vietnam. A comparative analysis of the content of the norms regulating lawful harm is made. A number of issues related to the use of weapons by law enforcement officials in Russia and Vietnam were raised. Using the comparative method, the authors try to investigate the relevant norms, identify the advantages and disadvantages of legal regulation of circumstances that exclude the criminality of an act. note that the authors are in the position of expanding the range of circumstances that exclude the criminality of the act, which are subject to normative consolidation in the criminal legislation. Moreover, in view of the ambiguous and often inconsistent practice of applying criminal legislation in this area, it is proposed that in the further reconstruction of the relevant norms of Chapter 8 of the criminal code, use a casual way of presentation to create the most understandable for citizens wording of norms that allow lawfully cause harm to public relations protected by criminal law. Otherwise, the very fact of their existence in criminal legislation is called into question because of the inability and unwillingness of citizens to use the right granted by law. Possible ways of resolving contradictions in the criminal legislation of Russia and Vietnam are suggested.

scholarly journals Criminal record with imposed corrective measures: critical analysis of the concept regulated by the Criminal Code of the Republic of Belarus

2020 ◽  
pp. 8-22
Author(s):  
Kirill Igorevich Nagornov
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
Legal Regulation ◽  
Criminal Code ◽  
Criminal Record ◽  
Corrective Measures ◽  
The Subject ◽  
The Russian Federation ◽  
The Republic ◽  
Criminal Legislation

This article makes emphasis on critical analysis of the concept establishing legal consequences of the institution of criminal record with imposed corrective measures, set by the criminal law of the Republic of Belarus, for the purposes of resolving the question of its possible implementation in the Russian criminal legislation. The subject of this research is the separate positions of the criminal law of the Russian Federation and the Republic of Belarus regulating the institution of compulsory corrective measures alongside application of norms comprising this institution by the courts of these states, as well as scientific views of the Russian and Belarus doctrine dedicated to the indicated institution and the order of its implementation and consequences therein. The author provides critical analysis to the legislative construct of application of compulsory measures in the criminal law of the Republic of Belarus as theoretical-legal[WU1] , hence the hypothesis on the need to establish the consequences of criminal record in imposition of compulsory measures did not find its approval. Moreover, considering the analyzed positions of the concept, the author brings to discourse the proposal on establishing preventative control after serving the compulsory correctional sentence that would not result in criminal record; as well as on potential implementation of the experience of Belarus pertaining to legal regulation of the order of imposing compulsory measures.  [WU1]

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 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 Features of signs of the crime object provided by article 166 of the Criminal Code of the Russian Federation

2019 ◽  
Vol 2019 (2) ◽  
pp. 192-198
Author(s):  
Алена Харламова ◽  
Alena Kharlamova ◽  
Юлия Белик ◽  
Yuliya Belik
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Social Relations ◽  
Criminal Law ◽  
Criminal Code ◽  
Direct Object ◽  
The Supreme Court ◽  
The Subject ◽  
The Russian Federation ◽  
The Right

The article is devoted to the problematic theoretical and practical issues of the content of the signs of the object of the crimes under Art. 166 of the Criminal Code. The authors determined the main direct object, revealed the essence of the right of ownership, use and disposal. Marked social relations that can act as an optional direct object. Particular attention is paid in the article to the subject of the crime. Attempts have been made to establish criteria that are crucial for the recognition of any vehicle as the subject of theft. The content of the terms “automobile” and “other vehicle” is disclosed. The analysis of the conformity of the literal interpretation of the criminal law to the interpretation of the law enforcer is carried out. It is summarized that the Supreme Court of the Russian Federation narrows the meaning of the term “other vehicle”, including in it only vehicles for the management of which, in accordance with the legislation of the Russian Federation, is granted a special right. The authors provide a list of such vehicles and formulate a conclusion on the advisability of specifying them as the subject of a crime. The narration of the article is accompanied by examples of decisions of courts of various instances in cases of crimes under Art. 166 of the Criminal Code of the Russian Federation

scholarly journals Subject Of A Crime Under French Criminal Legislation

2021 ◽  
Vol 03 (01) ◽  
pp. 63-68
Author(s):  
Khurshida Mirziyatovna Abzalova ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Subject ◽  
Criminal Legislation ◽  
Legal Entities

This article deals with the issues of criminal liability of persons (the subject of the crime) for committing crimes under the Criminal Code of France. It is noted that the French criminal law does not contain any special chapter devoted to the subject of the crime, but provides for important provisions on the responsibility of individuals and legal entities. Based on the analysis, it was concluded that it is necessary to apply the experience of France in terms of liberalizing the responsibility of minors and introducing the responsibility of legal entities.

scholarly journals Problematyka prawa do grobu w kontekście dóbr osobistych

2019 ◽  
pp. 19-33
Author(s):  
Anna Chodorowska ◽  
Łukasz Szumkowski
Keyword(s):  
Criminal Code ◽  
Civil Code ◽  
Wide Field ◽  
The Past ◽  
Personal Rights ◽  
Human Individual ◽  
The Subject ◽  
The Moment ◽  
The Right ◽  
Living Person

The historical feature of the protection of corpses, as well as the development of funerary tendencies, is an integral part of the functioning of our civilization, from the very beginning of time. The approach to death depends on the cultural and denominational circle as well as time. Respect for the living and the dead was in the past a separate division of civilization and thought development. Nowadays, new trends can be observed in the development of the protection of the human individual, as well as his name or reverence. In modern Polish legislation, the open catalog of personal rights (Article 23 of the Civil Code) is a wide field of interpretation in the very problem of the existence of specific goods. Undoubtedly from the provision of art. 23 k.c, it follows that this protection is due to the live unit, and thus only until its death. In modern Polish legislation, the open catalog of personal rights (Article 23 of the Civil Code) is a wide field of interpretation in the very problem of the existence of specific goods. Undoubtedly from the provision of art. 23 k.c, it follows that this protection is due to the live unit, and thus only until its death. At the moment when, according to the law, we cease to deal with a living person, and we start talking about corpses, certain rights are ceded to the closest persons, some are subject to inheritance. The right that people who are closest to someone’s death to cultivate this person according to their own conscience and religion and the contract between the entity authorized to burial and the cemetery management, as well as a number of related circumstances (on the drudge of several areas of law), will be called the right to the grave. The existence of the right to the grave belongs to arguable issues, as the liberty of the subject granting a certain sphere of possibility of proceedings, including its the scope of power. In the article, the Authors also discuss the issues related to the offense described in the art. 261 and 262 of the Polish Criminal Code. The dogmatic analysis carried out with regard to elements of a prohibited act has made it possible to establish, the scope of criminalization of these acts.

The necessary defense and excess of its limits: legislative improvement opportunities

2020 ◽  
Vol 2020 (3) ◽  
pp. 111-117
Author(s):  
Andrei Nikulenko ◽  
Maksim Smirnov
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
The State ◽  
Advantages And Disadvantages ◽  
The Russian Federation ◽  
Legislative Improvement ◽  
Criminal Legislation

The article is devoted to the necessary defense as a circumstance that precludes the criminality of an act in the criminal legislation of the Russian Federation. The significance and importance of the existence of this norm is proclaimed both in the criminal law and in the Basic law of the state – the Constitution of the Russian Federation. The existence of a rule on necessary defense in the state emphasizes the development of its legal system, allowing citizens to defend their own interests and protect the interests of others, in ways not prohibited by law, thereby preventing exceeding the limits of necessary defense. A number of issues related to the application of the norms provided for in article 37 of the Criminal code of Russia, as well as the norms of the Special part of the Criminal code of Russia, which provide for liability for crimes committed when exceeding the limits of necessary defense, were raised. The study of the relevant norms makes it possible to identify the advantages and disadvantages of legal regulation of circumstances that exclude the criminality of an act, including the shortcomings of judicial and investigative practice. The author criticizes the existing approach and suggests ways to resolve these problems, including by correcting the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 27, 2012, № 19 «About application by courts of legislation on necessary defense and causing harm when detaining a person who has committed a crime». Because of the ambiguous and often inconsistent application of norms of the criminal legislation on necessary defense, the authors give the recommendations (in further reconstruction of the relevant provisions of article 37 of the Criminal Code) to use an enumeration approach of presenting the legal formulation of these rules that allow the defender to cause any harm to an attacker. At the same time, it creates the most understandable, for citizens, formulation of the norm that allows lawfully causing harm to public relations protected by criminal law.

Principles Of Law In Modern Criminal Law Of China: Historical And Legal Analysis

2021 ◽  
pp. 160-167
Author(s):  
X. Shan
Keyword(s):  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
People’S Republic Of China ◽  
Legal Analysis ◽  
People's Republic Of China ◽  
Public Authorities ◽  
Republic Of China ◽  
Criminal Legislation ◽  
Principle Of Legality

The article looks into the evolution of the concept of “the principles of criminal law” in the legislation of the People’s Republic of China during the second half of the twentieth century. The principles of law are recognized as the normative foundations of law, which determine the general scope, main peculiarities and the most significant features of legal regulation. The article studies a number of definitions offered by some Chinese scientists who dealt with the theoretical and legal problems. The People’s Republic of China was created on October 1, 1949 against the background of destroyed economy, demoralized society, prevailing chaos and the unstructured nature of public authorities. In that period, no codified criminal law was in place. Some criminal acts of that time showed that any fundamental principles were included in the system of criminal legislation either. The first Criminal Code of the People’s Republic of China of 1979 did not mention any principles of law, whereas the Criminal Code of 1997 provided for three fundamental principles, which became the subject of our analysis. These are the principle of legality, also known as the principle of no punishment for doing something that is not prohibited by law (nullum crimen, nullum točka sine lege), the principle of equality of citizens before the law, the principle of conformity of criminal-legal measures to the nature and circumstances of crime. It is these principles that have been reflected in the current criminal code. Despite the amendments of criminal law introduced over the last few decades, the principles of law have remained unchanged. The conclusion to the publication makes a suggestion to introduce the general principle of humanism into in the General Provisions of the Criminal Code of China. The scholar believes that this principle should be recognized as the key principle of the criminal law of China, and will aim to ensure the democratic nature of Chinese criminal law.

scholarly journals Genesis of the legislative definition of crime and category of crimes in accordance with the Russian criminal law

2020 ◽  
pp. 35-62
Author(s):  
Satenik Vrezhovna Shakhbazyan
Keyword(s):  
Social Relations ◽  
Criminal Law ◽  
Criminal Policy ◽  
Legal Regulation ◽  
Criminal Code ◽  
Soviet Period ◽  
Normative Documents ◽  
Definition Of ◽  
Criminal Legislation ◽  
Further Development

The subject of this research is the process of state legal regulation of evolution of the definition of crime and category of crimes within the Russian criminal law. Special attention is given to the analysis of normative sources, which allows determining the key stages of development of the doctrine on crime and categorization of crimes. The author substantiates the opinion that normative documents of the Soviet period regulated the provisions regarding crime and categorization of crimes to the fullest extent, which laid the groundwork for the development of current Criminal Code of the Russian Federation. The conducted analysis of sources allowed concluding that the criminal legal policy in definition of crime and category of crimes, implemented by a legislator at various stages of social relations, is characterized by priority vectors in criminal policy of the state and caused by objective needs of the society. The complicated by their nature criminal-legal relations are constantly changing, which justifies the need for improvement of criminal legislation. The author comes to the conclusion that formalization and further development of the doctrine on crime and categorization of crimes retains its relevance in light of reform in criminal legislation.

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