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.

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.

THE DEVELOPMENT OF MODERN RUSSIAN CRIMINAL ANTI-CORRUPTION LEGISLATION

2018 ◽  
pp. 21-29
Author(s):  
Andrey Sergeyevich Burtsev ◽  
Vyacheslav Sergeyevich Semenyakin
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Criminal Law ◽  
Mutual Influence ◽  
Criminal Code ◽  
Minimum Size ◽  
Legal Norms ◽  
The Russian Federation ◽  
Criminal Legislation ◽  
Modern Russian

We consider development of modern criminal legislation features in the anti-corruption sphere. The urgency of the fight against corruption in the Russian Federation and the difficulties standing in its way are emphasized. Noted the specificity of the Russian legislation in the anti-corruption sphere, which consists in the fact that the modern Russian criminal law mechanism of combating corruption is firmly based on international legal acts. The main stages of development and formation of modern anti-corruption legislation, its connection with international law are considered. The role of legal norms in strengthening the security of the state, increasing its authority in the world is revealed. A large number of sources of corruption law are analyzed, including the Criminal Code of the Russian Federation, Federal laws, the Decision of the Supreme Court of the Russian Federation, Decrees of the President of the Russian Federation. Changes made to the legislation in different years concerned the subject structure, the minimum size of a bribe, nature of commission of crime, etc. In the course of the analysis of anti-corruption norms of criminal law traced their relationship with the non-criminal legislation in force in this area, noted their mutual influence. It is concluded that the current anti-corruption criminal legislation has been formed in the Russian Federation, but the process of its development due to the ongoing socio-economic transformations of society is not completed. The necessity of an effective legal mechanism regulating public relations arising in the case of a corruption-related crime is noted.

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 ISSUES OF QUALIFICATION OF EXCEEDING OF JUSTIFIABLE DEFENSE LIMITS

2020 ◽  
Vol 11 ◽  
pp. 32-36
Author(s):  
Andrey V. Nikulenko ◽  
◽  
Maksim A. Smirnov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Advantages And Disadvantages ◽  
The Supreme Court ◽  
The Russian Federation

The article is dedicated to justifiable defense as a circumstance excluding the criminal character of an act pursuant to criminal laws of the Russian Federation. The authors cover some issues concerning the application of provisions stipulated by Article 37 of the Criminal Code of Russia. The research of these provisions allows identifying the advantages and disadvantages of the legal regulation of justifiable defense including the disadvantages of the judicial and investigative practice. The paper criticizes the existing approach and offers ways to solve the indicated problems including by means of amendment of resolution of the Plenum of the Supreme Court of the Russian Federation No. 19 of September 27, 2012, On the Judicial Application of Laws on Justifiable Defense and Causing of Damage in the Course of Detention of a Criminal. The authors suggest a means of possible reconstruction of the corresponding provisions of Article 37 of the Criminal Code of the Russian Federation in view of ambiguous and often inconsistent practice of application of criminal law provisions on justifiable defense.

scholarly journals RULES ON INCHOATE CRIME IN THE CRIMINAL LEGISLATION OF THE REPUBLIC OF BELARUS

2016 ◽  
pp. 0-0
Author(s):  
Василий Некрасов ◽  
Vasiliy Nekrasov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Legal Regulation ◽  
Criminal Code ◽  
The Russian Federation ◽  
The Republic ◽  
Definition Of ◽  
Criminal Legislation ◽  
Tools And Techniques

The article analyzes the issues of differentiation of responsibility and norm design technique on inchoate crime in the criminal legislation of the Republic of Belarus. The author examines the legislative definition of preparation for a crime, attempted crime and voluntary renunciation of criminal purpose. As a result of the study the author has found out the main methods and means of legislative technique, used by the Belarusian legislator. These are abstract and casuistic methods, the terminology of the criminal law and several others. Comparison of legal regulation of norms on unfinished crime in the Criminal code of the Republic of Belarus and the Criminal code of the Russian Federation has allowed to identify gaps made by the legislators of both countries in application of specific tools and techniques of legislative drafting. Court practice of the Republic of Belarus in cases of preparation for a crime and attempted crime also was analyzed in present article. The author has evidentiated the means of differentiation of the responsibility for committing inchoate crime, used by the Belarusian legislator. The definitions “inchoate crime” and “stage of the crime” were also analyzed in present study. As a conclusion the author has made the recommendations for improving the criminal legislation of the Russian Federation and the Republic of Belarus on regulation of criminal responsibility for an inchoate crime.

scholarly journals Analysis of the criminal legislation of France, England and Spain about responsibility for lecherous actions

2021 ◽  
Vol 27 (4) ◽  
pp. 186-191
Author(s):  
Valeria A. Demidovich
Keyword(s):  
Russian Federation ◽  
Practical Experience ◽  
Legal Regulation ◽  
Criminal Code ◽  
Telecommunication Networks ◽  
Job Responsibilities ◽  
Advantages And Disadvantages ◽  
Foreign Countries ◽  
The Russian Federation ◽  
Criminal Legislation

The purpose of this article is to analyse the existing legal regulation of acts that are part of the crime under Art. 135 of the Criminal Code of the Russian Federation, in the criminal legislation of foreign countries. This analysis is aimed at improving Russian legislation in terms of counteracting the commission of these crimes. The author outlines the problem of qualifying lecherous actions both in Russian and foreign legislation. The category of “lecherous acts” in the understanding of Russian legislation and its correlation with similar acts in foreign countries has been investigated. The legislative and practical experience of England, Spain and France in this area is analysed, the advantages and disadvantages of the legal regulation of lecherous actions are highlighted. Positive experience is presented as proposals for optimising Russian legislation providing for liability for lecherous acts, it is proposed to give a legal assessment of the acts provided for Art. 135 of the Criminal Code of the Russian Federation, committed with the use of telecommunication networks by persons who are legal representatives of minors, as well as persons whose job responsibilities include providing care, upbringing and rendering educational services, since the commission of a crime under Art. 135 of the Criminal Code of the Russian Federation in these conditions is a greater public danger.

Certain problems of crimes qualification related to abuse and excess of authority

2020 ◽  
pp. 206-215
Author(s):  
Svetlana Vorobyeva ◽  
Ilya Volkov
Keyword(s):  
Local Government ◽  
Public Relations ◽  
Russian Federation ◽  
Public Service ◽  
Criminal Code ◽  
The State ◽  
Distinctive Features ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Criminal Legislation

The work indicates that the Russian Federation is improving the norms of criminal legislation aimed at countering acts that infringe on public relations, ensuring the interests of the state, public service and service in local government bodies. However, the analyzed offences – abuse of authority (article 285 of the Criminal Code of the Russian Federation) and excess of authority (article 286 of the Criminal Code of the Russian Federation) contain such effects as a significant violation of rights and legitimate interests of citizens, organizations or legally protected interests of society or the state, which emphasizes their public danger. While analyzing these compositions of acts, we indicate both general and distinctive features. It is emphasized that the problem of their differentiation is expressed, first, in the fact that their technical and legal design is based on evaluation features, and second, on the basis of the existing distinctive features, the same act in different cases is qualified differently – under article 285 of the Criminal Code of the Russian Federation or under article 286 of the Criminal Code of the Russian Federation. We divine that in matters of the types of crimes qualification under consideration, it is of paramount importance to establish the limits of authority, the motive for committing the crime, as well as the connection with official activities.

COMPARATIVE LEGAL ANALYSIS OF THE BREACH OF DUTIES OF THE JUVENILE PERSON UPBRINGING IN THE CRIMINAL LAW SYSTEMS OF RUSSIA AND INDIVIDUAL FOREIGN COUNTRIES

2020 ◽  
Vol 10 (6) ◽  
pp. 159-167
Author(s):  
SVETLANA POMNINA ◽  
Keyword(s):  
Comparative Analysis ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Regulation ◽  
Criminal Code ◽  
Theory And Practice ◽  
Holistic View ◽  
Foreign Countries ◽  
The Russian Federation ◽  
Criminal Legislation

Objectives: Particular issues of comparative analysis of the liability regulation for the breach of duties of the juvenile person upbringing in the criminal law systems of Russia and foreign countries are relevant to the theory and practice of criminal law. This reason is conditioned by the need of their in-depth study so as to improve Russian criminal legislation and to extend the practical application of the criminal law norms specified in the Article 156 of the Criminal Code of the Russian Federation as well as to implement its preventive potential. Research methodology: Comparative legal study of the main categories and concepts used to accurately and correctly determine the constructive signs of the investigated criminal encroachment is done by dialectical, comparative, technical and logical methods. Summary: The article reveals the provisions on the specifics of the qualification of personal actions that consists in breach of duties of the juvenile person upbringing under the Russian criminal code. This reason demands a competent scientific and legal assessment upon the experience of their legal regulation in the norms of foreign criminal law. Conducted comparative analysis of criminal legislation, a synthesis of the views of individual scientists-lawyers are allowed to form a holistic view of the institution of responsibility for committing a crime under article 156 of the Criminal Code of the Russian Federation and to identify the main problems that show up at the constructive tagging of this act. Within the framework of this article, a change of the norm wording of the Article 156 of the Criminal Code of the Russian Federation would be justified by the need to implement the particular provisions of the criminal legislation of individual foreign countries. Therefore, this action will help to increase the effectiveness of its application. Significance: The research provisions can be used for teaching of criminal law courses and for practical implementation of criminal nature of the offense.

scholarly journals LEGAL ANALYSIS OF THE GENERAL CRIME IN THE RUSSIAN FEDERATION: STATUS AND TRENDS OF DEVELOPMENT

2019 ◽  
Vol 23 (1) ◽  
pp. 102-122
Author(s):  
Vadim A Avdeev ◽  
Ekaterina V Avdeeva
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
The State ◽  
Legal Analysis ◽  
State Structure ◽  
Legal Policy ◽  
Structure And Dynamics ◽  
The Russian Federation

The current conditions of the ongoing intra-state socio-economic and political-legal transformations inevitably affect the state, structure and dynamics of ordinary criminal mercenary criminality. The conducted legal analysis confirms the urgency of the development and implementation of new, more sophisticated measures to counter theft, fraud, robbery, robbery and extortion, taking into account the development trends of these crimes against property. The renewed renovation of the Russian state system is accompanied by the adoption of the Concept of Long-Term Social and Economic Development of the Russian Federation, the National Security Strategy of the Russian Federation, which predetermine new directions of the criminal legal policy in minimizing the criminalization of public relations to ensure the security of various forms of ownership. The globalization of law, the changing polycentric world predetermine the expediency of following the universally recognized principles and norms of international law, including those aimed at effectively countering ordinary criminal mercenary criminality. Throughout the evolution of social development, the priority task of each state was the inviolability of property interests. Analysis of the state, structure and dynamics of crimes against property, regulated by Art. 158-1596, 161-163 of the Criminal Code of the Russian Federation, allows us to note the dominant position of ordinary criminal mercenary criminality. In this connection, conclusions are drawn on the trends in the development of the criminal situation, and the estimation of the illegality and collision of modern criminal legislation with regard to the construction of criminal law norms is given. The main directions of the criminal and legal policy in the sphere of novelization of the criminal law on counteracting common criminal mercenary criminality are to be understood. The topical issues of legislative and organizational-practical nature in the field of countering common criminal mercenary criminality are considered.

scholarly journals APPLICATION OF THE CRIMINAL LAW IN CONTRACTING SYSTEM AND STATE DEFENSE ORDER VIOLATIONS

2018 ◽  
Vol 2 (2) ◽  
pp. 56-63
Author(s):  
Victor Nikolaevich Borkov
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Criminal Law ◽  
Public Procurement ◽  
Criminal Code ◽  
The State ◽  
Official Position ◽  
System Method ◽  
The Russian Federation ◽  
State Defense

The subject. The article is devoted to analysis of court practice concerning crimes in public procurement.The purpose of the paper is to solve the problem of delimitation of theft committed by the perpetrator with the use of his official position, from abuse of official powers and official forgery is topical.The methodology. General scientific methods as analysis, synthesis, induction, deduction, comparison were used. The system method allowed to consider misdemeanors and a set of rules providing for responsibility for their commission, in conjunction with public relations, which need criminal law protection. The functional approach made it possible to address the issues of qualification for official crimes against the contract system and the state de-fense order, taking into account the forms and methods of activity of the subjects of con-tractual relations.Results and scope of application. An important role in improving the effectiveness of public procurement is played by officials who, in dealing with suppliers of goods and executors, are called upon to defend public interests. The public danger of crimes committed by offi-cials in this sphere is manifested in the destruction of the material basis of the functioning of the state, undermining its defensive capacity and reducing the level of security. Judicial practice testifies to the lack of uniform approaches to the qualification of crimes committed in the sphere of execution of the state and municipal contract.The article proposes criteria for delimiting the encroachments of officials on the expendi-ture of budgetary relations, taking into account the addition of the criminal law to norms that provide for responsibility for abuse in the performance of the state defense order (art. 201.1 and 285.4 of the Criminal Code of the Russian Federation). In the qualification of crimes committed in the sphere of contractual relations, and the application of art. 201.1 and 285.4 of the Criminal Code of the Russian Federation are proposed to be guided by the recommendations of the Supreme Court of the Russian Federation on the delimitation of abuse of official powers from embezzlement.Conclusions. It is necessary to proceed from the existence of two lines of activity of the customer. The first is the acceptance of the delivered goods, the work performed, the ser-vices rendered. The second is payment for goods, work and services.

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