scholarly journals SUBJECTIVE SIGNS OF THE COMPOSITION OF CRIMES IN THE LAWS OF THE STATES OF MEDIEVAL EUROPE

2017 ◽  
Vol 21 (3) ◽  
pp. 167-175
Author(s):  
B. A. Molchanov ◽  
M. V. Novikov
Keyword(s):  
Middle Ages ◽  
Criminal Law ◽  
Strict Liability ◽  
The State ◽  
Medieval Europe ◽  
The Subject ◽  
The Individual ◽  
The Right ◽  
Criminal Legislation ◽  
The Church

The paper discusses formation and development of criminal legislation on the subject and subjective signs of the crime in the countries of medieval Europe within the comparative jurisprudence. The authors note that the level of culture and statehood in any society and its government bodies as a whole depends on the attitude of the society and the state to those who committed unlawful, criminally punishable acts. On the materials of criminal law in the Ancient World and the Middle Ages (Ancient Rome, Ancient Greece, etc.) a strict liability was in law-enforcement practice. New states were formed during the Middle Ages. That led to the need of strengthening their authority of state power and statehood. Consequently, the state got the right to protect the interests of the individual and society, and the right to creation a new criminal legislation and its institutions. The church survived after liquidation of many public and state institutions. On the one hand, it contributed to the preservation of scientific achievements of the Ancient World. On the other hand, the church deprived science of free critical attitude to the issues under study. Philosophy and jurisprudence were based on theology. Criminal-legal institutions could be developed only in the direction, which had been approved by the church. Clearly, the idea of protecting the rights of the individual, strict liability and conditions of sanity could not be widely applied. As soon as the states were originated, strict liability was necessary to stop the blood feud and delegation of the judiciary from the society to the state. The obtained knowledge about the world and deeper understanding of the causality of what is happening facilitated the process. From the political point of view, theology (a Christian doctrine) influenced the criminal law policy in Medieval Time. The legislator regulated a range of subjects of the crime. In X - XI centuries, ancient ideas of strict liability were accepted in Europe. Crimes were divided into willful and not deliberate. The principle of the personal guilty is directly related to the subject of the crime. Murderers, rapists, thieves, swindlers and others were declared criminals. Judicial practice of many times and peoples gives us numerous examples confirming the existence of views on the animal as a subject of crime. Age limits of legal responsibility were defined as the minority, which is different from the social maturity, and sometimes old age, were considered the reason for the undisputed crime blamed of a crime to a subject. People under 14 years old could not be subjected to the death penalty, except when "malice can make up for the lack of age". The authors pay attention to the fact that the interests of healthy individuals guided medieval jurisprudence and medicine. They also regulated peculiarities of the healthy individuals’ legal capacity, presence of dementia and mental illnesses, etc. The mitigation of punishment in some cases when the fault of the subject of the crime was absent, fixing the criminal-legal significance of the motive of the crime, intent and some other subjective features in the legislation were a progress. Studies of the Medieval European States shows that the legislator at that time did not formulate general signs of the subject of the crime and did not know the criminal legal concept of strict liability. However, there was a need to solve the problem. Thus, the paper discusses the essence of the criminal legal significance of the сorpus delicti, its place in the criminal law and law enforcement practiceю. The authors used scientific literature of both foreign and Russian

Reflections on the existence of the science of criminal law

2021 ◽  
pp. 156-161
Author(s):  
I. Mytrofanov
Keyword(s):  
Social Justice ◽  
Public Relations ◽  
Criminal Law ◽  
The State ◽  
Crime And Punishment ◽  
Self Defense ◽  
Illegal Acts ◽  
The Subject ◽  
The Individual ◽  
The Right

The article states that today the issues of the role (purpose) of criminal law, the structure of criminal law knowledge remain debatable. And at this time, questions arise: whose interests are protected by criminal law, is it able to ensure social justice, including the proportionality of the responsibility of the individual and the state for criminally illegal actions? The purpose of the article is to comprehend the problems of criminal law knowledge about the phenomena that shape the purpose of criminal law as a fair regulator of public relations, aimed primarily at restoring social justice for the victim, suspect (accused), society and the state, the proportionality of punishment and states for criminally illegal acts. The concepts of “crime” and “punishment” are discussed in science. As a result, there is no increase in knowledge, but an increase in its volume due to new definitions of existing criminal law phenomena. It is stated that the science of criminal law has not been able to explain the need for the concept of criminal law, as the role and name of this area is leveled to the framework terminology, which currently contains the categories of crime and punishment. Sometimes it is not even unreasonable to think that criminal law as an independent and meaningful concept does not exist or has not yet appeared. There was a custom to characterize this right as something derived from the main and most important branches of law, the criminal law of the rules of subsidiary and ancillary nature. Scholars do not consider criminal law, for example, as the right to self-defense. Although the right to self-defense is paramount and must first be guaranteed to a person who is almost always left alone with the offender, it is the least represented in law, developed in practice and available to criminal law subjects. Today, for example, there are no clear rules for the necessary protection of property rights or human freedoms. It is concluded that the science of criminal law should develop knowledge that will reveal not only the content of the subject of this branch of law, but will focus it on new properties to determine the illegality of acts and their consequences, exclude the possibility of using its means by legal entities against each other.

scholarly journals Problems of criminal law protection of the national security of the state against subversive acts

2021 ◽  
Vol 10 (44) ◽  
pp. 307-315
Author(s):  
Oleksiy Pasyeka ◽  
Ruslan Shekhavtsov ◽  
Oleh Marmura ◽  
Stepan Burda ◽  
Taras Lutskyi
Keyword(s):  
National Security ◽  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Criminal Offense ◽  
The Subject ◽  
Criminal Legislation ◽  
Logical Semantic

The purpose of the article is to study the main problematic aspects of the regulation of liability for sabotage in the legislation of Ukraine. The subject of the research is the problematic aspects of the regulation of criminal liability for sabotage under the laws of Ukraine. In order to obtain reliable results, a number of methods are applied: dialectical, formal-logical, hermeneutic, logical-semantic, statistical, comparative-legal, etc. The results of the conducted research: modern threats to the national security of any state require effective measures of counteraction, including the qualitative criminal legislation. The main shortcomings of the regulation of liability for sabotage under the laws of Ukraine are due to the imperfection of the components of this criminal offense, as well as the misinterpretation of its provisions by the enforcer. In addition, it is determined that one of the important problems of liability for such action is the parallel existence of a terrorist act in the criminal legislation of Ukraine, and the components of a terrorist act by its content and nature in most cases coincides with the components of sabotage. A number of changes and additions to the criminal legislation of Ukraine on elimination of the specified problems are proposed.

Criminal Law Measures to Combat Violent Crimes: International Experience and National Trends

2018 ◽  
Vol 9 (1) ◽  
pp. 352
Author(s):  
Zhandos Bahtybaevich ZHOLZHAKSYNOV
Keyword(s):  
Violent Crime ◽  
Criminal Law ◽  
Modern Society ◽  
Critical Issue ◽  
The State ◽  
Violent Crimes ◽  
Criminal Violence ◽  
Foreign Countries ◽  
The Individual ◽  
Criminal Legislation

The article is devoted to criminal law measures to resist criminal abuses related to violence. In modern society, the protection of individual rights and freedoms is one of the most important tasks. Within this task, the most critical issue is that of protection of the individual from criminal violence by criminal law measures. The problems of violent crime, despite all measures taken by the state and society, do not go into the past, but become relevant for modern society. Without exaggeration, they represent a social disaster that threatens the security of the individual, society and the state. The purpose of the article is to analyze the criminal law methods of combating violent crime, to study the criminal provisions relating to the use of violence in Kazakhstan's national criminal legislation and legislation in a number of foreign countries. The article examines the opinions of scientists on the nature and characteristics of criminal violence, the criminal law of Kazakhstan and the legislation of a number of foreign countries in terms of violent crimes, formulates conclusions and sets out the recommendations for the further improvement of the criminal protection of the individual against violent endeavors. On the basis of an examination of the theoretical material and experience of foreign countries in the field of countering violent crime, the author suggested ways of counteracting the mentioned crime, suggesting further improvement of the criminal legislation of the Republic of Kazakhstan, in the sphere of protecting the individual from criminal violence. The main provisions and conclusions of the article can be used in science and practice in addressing crime prevention, comparative characteristics of the criminal regulations regarding violence in Kazakhstan and foreign countries, as well as the subsequent reform of the criminal law in the field of the physical integrity of the individual.

scholarly journals Difficult way of the institution of criminal liability for attacks on the honor and dignity of the person, or problems of targeting

2021 ◽  
Vol 7 (2) ◽  
pp. 48-56
Author(s):  
T. V. Klenova
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Policy ◽  
Point Of View ◽  
Historical Method ◽  
Democratic State ◽  
The Individual ◽  
The Right ◽  
Criminal Legislation ◽  
The Impact

The article is devoted to the institution of criminal liability for attacks on the honor and dignity of the individual. The article, using the historical method, examines the stages of development of this institution and the features of protecting the honor and dignity of the individual from the point of view of the values of a modern democratic state. The author analyses the impact of explicit and implicit criminal policy objectives on the ways to protect the honor and dignity of the individual. Particular attention is paid to the criminalization and decriminalization of libel and slander. The research is aimed at identifying the problems of targeting in changes in the institution of criminal liability for attacks on honor and dignity, when the relevant criminal law norms are replaced by administrative law norms. The author seeks to depoliticize the protection of the personal right to honor and dignity on the basis of the principle of equality of citizens before the law. The current Russian criminal legislation is mainly aimed at protecting the honor and dignity of persons in connection with their social accessories. Within the protective concept of criminal law, the author of the article justifies the conclusion that the right of anyone who has suffered from slander or insult to achieve the truth and state censure of the perpetrator is guaranteed. Such a view will also be interesting to researchers of the criminal process.

scholarly journals Category of guilt in criminal law: economic approach

2018 ◽  
Vol 2 (4) ◽  
pp. 98-105
Author(s):  
O. Bibik
Keyword(s):  
Risk Management ◽  
Criminal Law ◽  
Criminal Liability ◽  
Civil Law ◽  
Economic Approach ◽  
Negative Consequences ◽  
Potential Offender ◽  
The Subject ◽  
The Right ◽  
Criminal Legislation

The subject of the paper is guilt as criminal legal category.The main aim of the paper is to confirm or disprove the hypothesis that there is a need for risk management in order to prevent crime.The description of methodology. The author uses economic approach and the theory of rational choice as well as the dialectic and formal-legal methodology.The main results and scope of their application. The greater the probability of socially dangerous consequences of actions, the greater the risk, the greater the degree of guilt of the subject and the degree of danger of the crime. In criminalization the risks should be optimally distributed between the state (installs criminal prohibitions) and the citizens (complying with those prohibitions), as well as between the potential offender and the victim. It is necessary to quantify the risk of socially dangerous consequences (for example, as a percentage) for each form of guilt. This will make it possible to streamline and develop forms of guilt, to correlate specific types of guilt with specific crimes in terms of the risks that the crime carries. New forms of guilt, in particular criminal ignorance, need to be introduced. Unlike negligence, which is difficult to control, ignorance, as well as competence, can be fully controlled. It is necessary to take into account the guilt of the victim, who by his behavior contributed to the crime. If the victim has not taken all precautions ( the more provoked the offender) - he must share the overall result, bear the risk of socially dangerous consequences. If there is a violation of the rules of conduct by the offender and the victim, the court should have the right to substantially mitigate the punishment or to refuse to apply it at all, taking into account the nature and extent of the violations committed by each party. For example, with regard to crimes of minor gravity when the victim provoking a crime, failure to take precautions should provide for mandatory exemption from criminal liability with compensation for harm in civil law. Premeditated intent seriously complicates the disclosure of crimes. This intent should be seen as a basis for more severe sanctions. The results of research may be used as the basis of correction of the criminal legislation.It is concluded that any form of guilt in any legal system is based on an assessment of the risks of negative consequences.

scholarly journals A Vulnerabilidade do Direito à Intimidade no Espaço das Ferramentas Tecnológicas: Mandados Constitucionais de Proteção do Direito Fundamental à Intimidade por Intermédio do Direito Penal

2016 ◽  
Vol 11 (2) ◽  
Author(s):  
George Sarmento ◽  
Lean Antônio Ferreira de Araújo
Keyword(s):  
Criminal Law ◽  
Evolutionary Process ◽  
The State ◽  
Fundamental Rights ◽  
Mato Grosso ◽  
Democratic State ◽  
De Se ◽  
The Individual ◽  
The Right ◽  
Article 5

A VULNERABILIDADE DO DIREITO À INTIMIDADE NO ESPAÇO DAS FERRAMENTAS TECNOLÓGICAS: MANDADOS CONSTITUCIONAIS DE PROTEÇÃO DO DIREITO FUNDAMENTAL À INTIMIDADE POR INTERMÉDIO DO DIREITO PENAL  THE VULNERABILITY OF THE RIGHT TO INTIMACY IN THE SPACE OF TECHNOLOGICAL INSTRUMENTS: CONSTITUCIONAL WARRANTS FOR PROTECTION OF THE FUNDAMENTAL RIGHT TO INTIMACY THROUGH CRIMINAL LAW  George Sarmento*Lean Araújo**  RESUMO: O direito à intimidade integra o catálogo dos direitos fundamentais de proteção descrito no art. 5º, X, da Carta Constitucional, cuja essência é limitar a ação invasiva do Estado e dos demais indivíduos. No processo evolutivo do Estado é de se destacar a contribuição de Hobbes na formulação do Estado como ente responsável pela preservação dos indivíduos. Este momento instituiu a ruptura do indivíduo como ser que se realiza no outro para o ser empreendedor de seu próprio plano de vida, mas submetidas as ações as regras de condutas. A partir desta concepção absolutista evoluiu-se para a formulação de um Estado com delimitação de tarefas por intermédio de Órgãos autônomos e independentes visando à concretude de direitos de proteção ou defesa, direitos prestacionais e direitos de participação. A existência desse Estado Democrático de Direito e Social, constituído a partir da vontade dos seus indivíduos, exige a proteção dos direitos instituídos, dentre eles, à intimidade, e, para tanto, a própria ordem constitucional fixa mandados constitucionais de criminalização, para excepcionalmente coibir os abusos operados no espaço físico e no espaço das ferramentas tecnológicas, em razão da vulnerabilidade existente. PALAVRAS-CHAVE: Direito à Intimidade. Ferramentas Tecnológicas. Vulnerabilidade. Proteção pelo Direito Penal. ABSTRACT: The right to intimacy integrates the catalog of privacy fundamental rights depicted in article 5 section X of the constitutional charter. Its essence is to limit the invasive action of the State and other individuals. Hobbes had an important role in State evolutionary process concerning the formulation of the State as responsible for individuals preservation. This moment established the rupture of the individual as a being that realizes itself on another, to an entrepreneur of its own life plan, but submitted to actions and rules of conduct. This absolutistic conception evolved to the formulation of a State with tasks bounded by autonomous and independent agencies aiming to concretize the protection or defense rights, benefit rights and social participation. The existence of this Democratic State and social rights established by the will of the individuals, demands the protection of the established rights, such as intimacy, and therefore the constitutional order itself provides criminal warrants to exceptionally restrain misconducts operated in the physical and technological  space, due to existing vulnerability. KEYWORDS: Right to Intimacy. Technological Tools. Vulnerability. Protection through Criminal Law. SUMÁRIO: Introdução 1 A Evolução do Estado no Pensamento Político. 2 A Unidade da Constituição. 3 A Classificação dos Direitos Fundamentais. 3.1 Os Direitos Fundamentais de Proteção. 3.2 Os Direitos Fundamentais Prestacionais. 3.3 Os Direitos Fundamentais de Participação. 4 O Agir Moral em Contexto. 5 O Espaço das Ferramentas Tecnológicas como meio de Ofensa ao Direito à Intimidade. 6 Mandados Constitucionais de Criminalização. 7 Alterações da Legislação Penal. Considerações Finais. Referências.* Pós-doutor pela Université Daix-Marseille, França. Doutor em Direito pela Universidade Federal de Pernambuco (UFPE). Professor do Mestrado do Programa de Pós-Graduação em Direito da Universidade Federal de Alagoas (PPGD/UFAL). Promotor de Justiça.** Acadêmico de Direito da Universidade Federal de Mato Grosso (UFMT). Pesquisador bolsista de Iniciação Científica da Universidade Federal do Mato Grosso do Sul (UFMT) e do Conselho Nacional de Desenvolvimento Científico e Tecnológico (CNPQ).

scholarly journals Circumstances Excluding Criminality of an Act in the Light of the General Theory of Law

Lex Russica ◽  
2020 ◽  
pp. 62-70
Author(s):  
A. V. Savinskiy
Keyword(s):  
General Theory ◽  
Criminal Law ◽  
Legal Theory ◽  
Criminal Code ◽  
The State ◽  
Theory And Practice ◽  
Actual Problem ◽  
Theory Of Law ◽  
The Individual ◽  
The Right

The paper is devoted to an actual problem of the legal theory and practice, namely: the institution of circumstances excluding criminal nature (criminality) of an act (Chapter 8 of the Russian Criminal Code). As a manifestation of criminal and legal compromise steadily strengthening its position in domestic criminal legislation, this legal phenomenon is intended to encourage citizens to commit actions that contribute to localization or minimization of threats to the interests of the individual, society and the state protected by the law. At the same time, despite seemingly clear legislative enactment, the institution of circumstances precluding the criminal nature of an act evokes hot scientific debates. Among forensic scientists there is no uniform opinion concerning the legal nature of the criminal law institution as a whole and some of the individual types of circumstances constituting the institution under consideration, in particular. The legal literature substantiates the idea of the need to expand the legislative list of such circumstances. Investigators and judges often face difficulties in practical application of the rules enshrined in articles of Chapter 8 of the Criminal Code (especially provisions concerning necessary defense, extreme necessity, reasonable risk). The reasons for theoretical and practical problems related to the circumstances excluding the criminal nature of the act are largely preconditioned by the insufficient research of the institution under consideration in the general theory of law. This fundamental theoretical legal science lacks general legal equivalents of the criminal law concepts “criminality of the act”, “circumstances excluding criminality of the act.” It is proposed to introduce into scientific circulation the general legal equivalent of the concept “criminality of the act” — “delinquency of the act”, representing the set of such features of the offense as public harm, wrongfulness, culpability and punishability. This new legal design will allow us to investigate the phenomenon of circumstances excluding criminality of the act in the light of a general theory of law, to determine the possibility and limits of their subsidiary application in various branches of law. Thus, categories of circumstances excluding criminal, administrative, civil. disciplinary delinquency of acts will acquire the right to exist in differnt legal sciences and relevant branches of law. This, in turn, will contribute to improving the effectiveness of protection of rights, freedoms and legitimate interests of the individual, ensuring the interests of the society and the state.

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 Interpretation of some criminal law aspects of the right to respect for private life

2021 ◽  
Vol 1 (15) ◽  
pp. 111-125
Author(s):  
Yuriivna Timofeyeva
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Freedom Of Expression ◽  
Environmental Safety ◽  
Criminal Code ◽  
The State ◽  
Private Life ◽  
The Right To Privacy ◽  
The Individual ◽  
The Right

The article considers some issues of interpretation of the right to privacy in the practice of the ECtHR and its impact on the criminal law of Ukraine. Numerous violations of the articles of the Convention require systematic response of the state and appropriate changes in both legislation and changes in law enforcement practices. The violations relate in particular to problems of interpretation of the provisions of the Convention. Provisions of Art. 8 of the Convention are related to other provisions of the Convention and the development of the case law of the European Court of Human Rights on certain issues. It is noted that the Convention is dynamic, it changes under the influence of society, its provisions change in the process of development and acquire new meanings. In particular, the ECtHR recognizes a violation of Art. 8 (right to respect for private life) in those contexts in which he has not previously recognized. In particular, interpretation of Art. 8 of the Convention in the context of the right to environmental safety in case significant harm to the persons health (cases Dubetska and others v. Ukraine, Grymkivska v. Ukraine), the right to beg in the context of the right to freedom of expression (Lakatush v. Switzerland). It is established that the development of these provisions requires analysis and consideration in the development of a new Criminal Code. At the same time, care must be taken to maintain a balance between freedoms and human rights and the security of society and the state. It is important that the rights enshrined in the Convention remain fundamental and do not go beyond the interests and needs of the individual. In addition, it is also necessary to take into account the national characteristics of the state.

Human Rights as Everyone’s Business

2019 ◽  
pp. 167-194
Author(s):  
Rowan Cruft
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
The State ◽  
Human Rights Violations ◽  
Human Rights Law ◽  
Collective Goods ◽  
The Individual ◽  
The Right

The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the individual, and that it overlooks the centrality of the state as duty-bearer in human rights law. The author’s response includes noting that state-focused human rights law is only one way in which ‘natural’ human rights are institutionalized: criminal law and non-law policy also play human rights roles. The chapter’s second half argues that human rights not only exist ‘for the right-holder’s sake’ (as in Chapters 7–9) but are also rights whose protection is distinctively ‘everyone’s business’: rights with which any human anywhere can show solidarity by demanding their fulfilment. This does not imply that human rights violations in one state are equally every state’s business. The chapter ends by summarizing Part II (Chapters 7–10) as vindicating the idea of human rights.

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