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.

From the bureau of forced labor to the criminal-executive inspections

2019 ◽  
pp. 149-156
Author(s):  
Ольга Васильевна Коростылёва
Keyword(s):  
Criminal Law ◽  
Electronic Monitoring ◽  
Criminal Liability ◽  
100Th Anniversary ◽  
October Revolution ◽  
Forced Labor ◽  
History Of ◽  
The Subject ◽  
Criminal Legislation ◽  
Legal Character

В статье рассматривается история становления и развития учреждений и органов, исполняющих уголовные наказания и иные меры уголовно-правового характера, не связанные с изоляцией от общества. После Октябрьской революции 1917 г. был актуализирован вопрос введения мер уголовной ответственности, не связанных с изоляцией осужденных от общества. Для исполнения указанных мер в 1919 г. было создано Бюро принудительных работ, которое со временем было переименовано в инспекции исправительно-трудовых работ. В настоящее время, с 1996 г., инспекции получили свое окончательное наименование - уголовно-исполнительные инспекции. На протяжении своего существования инспекции меняли только наименование, но и ведомственную принадлежность. Уголовно-исполнительные инспекции являются учреждением, исполняющим наибольшее количество уголовных наказаний и иных мер уголовно-правового характера, установленных уголовным законодательством, а также реализуют меры процессуального учреждения, связанные с применением системы электронного мониторинга подконтрольных лиц. Проведен анализ нормативного регулирования на предмет законодательного закрепления института учреждений, исполняющих наказания, альтернативные лишению свободы, в преддверии празднования 100-летнего юбилея существования уголовно-исполнительных инспекций. The article deals with the history of the formation and development of institutions and bodies executing criminal penalties and other criminal law measures not related to isolation from society. After the October revolution of 1917, the issue of introducing criminal liability measures not related to the isolation of convicts from society was actualized. For execution of these measures, in 1919, established the Office of forced labor, which eventually was renamed in the inspection of hard labor. At present, since 1996, the inspections have received their final name - criminal Executive inspections. Throughout its existence, the inspection changed only the name, but also departmental affiliation. Criminal-Executive inspections are the institution executing the greatest number of criminal punishments and other measures of criminal-legal character established by the criminal legislation, and also realizes the measures of procedural organization connected with application of system of electronic monitoring of under control persons. The analysis of normative regulation on the subject of legislative consolidation of the institution of institutions executing punishment alternative to imprisonment on the eve of the celebration of the 100th anniversary of the existence of criminal and Executive inspections.

scholarly journals PERLINDUNGAN HUKUM TERHADAP NOTARIS PENGGANTI YANG AKTANYA BERMASALAH DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 2004 JUNCTO UNDANG-UNDANG NOMOR 2 TAHUN 2014 TENTANG JABATAN NOTARIS

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Civil Law ◽  
Criminal Offense ◽  
Actual Reality ◽  
State Administration ◽  
The Law ◽  
The Right

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.

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 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.

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.

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 VIOLENCE AS A GENERAL CATEGORY OF PART OF TEACHING ABOUT CIRCUMSTANCES EXCLUDING THE CRIME ACTS

2019 ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Historical Analysis ◽  
General Category ◽  
Legal Basis ◽  
Criminal Violence ◽  
The Subject ◽  
General Part ◽  
The Right

The article gives the author’s definition of the concept of criminal violence and analyses its main types: physical and mental. The problems of the criminal law assessment of violence are considered as a sign of certain circumstances precluding the criminality of the act. The attention is focused on the fact that violence is an important category of teaching about the circumstances precluding the criminality of an act. It emphasizes that: violence acts as a legal basis for the existence of such circumstances; its existence gives the right to "unlimited" defence; it serves as the basis for bringing to criminal responsibility persons who have exceeded the limits of causing necessary and sufficient harm. The author draws attention to the importance of the criminal law assessment of subjective signs of violence. It is indicated that they are: the intent, purpose and motivation (motives) of committing actions. The sole purpose of such actions should be the goal of stopping unlawful acts and eliminating the danger. In the article, motivation is considered as a set of motives of actions similar in nature and content. It can be hostile, instrumental, negativistic and mixed. Establishing the type of motivation significantly affects the qualification of actions and the responsibility of the perpetrators. It is pointed out that crimes that are committed when the limits are exceeded, which are determined by the rules on circumstances precluding criminality, are related to the so-called “impulsive” crimes that are often committed in a state of emotional agitation (affect). This significantly affects the qualification of actions of the perpetrators, and in some cases leads to the release of the latter from criminal responsibility. Methods. When writing the article, the dialectical method, the methods of logical and historical analysis were used. They allowed analysing the existing criminal legislation and its historical development in the relevant field. Such a sociological method, such as the study of documents, makes it possible to back up the findings with the results of a study of judicial practice materials on the subject matter under investigation. Results and conclusions. Criminal violence in the General part of the doctrine of circumstances precluding the criminality of an act has the following meaning: it is an important category not only of the Special, but also of the General part of the legislation on criminal liability; is a category of teaching circumstances that exclude the criminality of the act; significantly affects the qualification of actions of the perpetrators in cases that are determined by the rules on the circumstances precluding the criminality of the act; in analysing the types of violence, both objective and subjective signs are important; together with the wilfulness of violent actions, the purpose and motivation (motives) of such actions matter; motivation of violent actions can be hostile, instrumental, negativistic and mixed; it characterizes the legal basis of certain circumstances precluding the criminality of the act; its use is the basis for the subject to "unlimitedly" use force for protection; it serves as the basis for bringing to criminal responsibility in case of exceeding the limits in certain circumstances, precluding the criminality of the act.

scholarly journals Limits of criminal law regulation of robotics

2021 ◽  
Vol 12 (3) ◽  
pp. 522-543
Author(s):  
Ildar R. Begishev ◽  
Keyword(s):  
Criminal Law ◽  
Justice System ◽  
Criminal Liability ◽  
Civil Law ◽  
Legal Regulation ◽  
Service Robots ◽  
Software Developers ◽  
Current State ◽  
Extent Of Damage ◽  
Criminal Legislation

The article analyzes the current state of intersectoral relations in the legal regulation of robotics. The author points out the complementarity and consistent integration of legal processes occurring in civil, administrative and criminal law into a single system. The connection between civil law institutions, in particular the institution of reparation and liability insurance with the provisions of criminal law is essential for the establishment of an effective criminal justice system of regulation using robotics and the construction of relevant norms. The study concluded that the main criterion distinguishing civil law torts with the use of robotics from criminal offences is the degree of public danger of these acts and the extent of damage caused from the consequences that have occurred. Civil liability for damage caused by robotics does not preclude administrative or criminal liability. The author presumes that there are no mechanisms in civil law to hold software developers for robots accountable, which is a serious omission in the context of the growing autonomy of robotics. Russian criminal legislation also does not address the problem of compensation for the use of military-type service robots in combat operations. This is a significant legal gap and prevents victims from seeking redress. The author considers it essential to recognize controlled and semi-controlled robots as sources of increased danger. The author also argues that the responsibility for the damage caused by controlled and semi-controlled robots should be assigned to the owners. Conceptually, it is considered important to take into account the degree of autonomy of robots and their relationship to the actions of operators. Both robots themselves (fully autonomous) and robotic (controlled and semi-autonomous) activities are a source of increased danger.

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

scholarly journals Features of criminal liability of persons with mental anomalies: foreign experience

2021 ◽  
pp. 417-424
Author(s):  
Anna Landina
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Prosecution ◽  
Foreign Experience ◽  
Legal Criterion ◽  
The Subject ◽  
Characteristic Features ◽  
Definition Of ◽  
Psychological Criterion ◽  
Criminal Legislation

Annotation: Despite the rather large number of works devoted to the study of the characteristic features of mental anomalies, which do not exclude criminal prosecution, the peculiarities of criminal prosecution of such persons, a number of insufficiently solved problems remain. In the criminal law of a number of countries, the liability of persons with mental anomalies has long been regulated within the institution of limited sanity. And in this aspect, the study of foreign experience in the legislative regulation of this institution is necessary. The purpose of the study is to study the rules of foreign criminal law, which determine the features of criminal liability of persons with mental anomalies, and compare them with the relevant rules of criminal law of Ukraine. Among the countries whose criminal law provides for limited sanity for persons with mental anomalies, there are two conditional approaches to the criminal liability of persons with mental anomalies (mental disorders) in accordance with the legal family: England-American and Romano-Germanic. In the vast majority of countries of the Romano-Germanic legal family, whose criminal law defines the specifics of the responsibility of persons with mental anomalies (limited sanity), criteria such as medical (mental anomaly or disorder) and psychological (lack of awareness and / or control of their actions). The criminal law of the England-American legal family does not have a clear definition of the concept, criteria and consequences of the state of limited sanity in the subject of the crime. The criminal legislation of Ukraine on determining the features of criminal liability of persons with mental anomalies in the form of their legislative definition corresponds to the legislation of the Romano-Germanic legal family. The legal criterion of limited sanity, which is defined in the theory of criminal law, should be called psychological, because it is an intellectual-volitional manifestation of behaviour, not legal. It may be legal to establish a medical and psychological criterion of limited sanity in the relevant norm with an emphasis on the criminal consequences that will have a mental anomaly on the criminal liability of such an entity.

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