Peculiarities of protection of subjective rights in the case of property confiscation

2020 ◽  
Vol 2020 (4) ◽  
pp. 54-61
Author(s):  
Kseniya Filipson ◽  
Nikolay Ryabinin
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
State Ownership ◽  
Main Research ◽  
Judicial Practice ◽  
Analysis And Synthesis ◽  
Full Compensation ◽  
The Subject ◽  
The Russian Federation ◽  
Subjective Rights

The purpose of the research is a general theoretical examination of confiscation as an intersectoral category of law, as well as revealing and scientifically-based solving urgent problems that arise in the field of protection of subjective rights in the case of the compulsory seizure of illegally possessed property. The main research methods are the following: structural and systematic, formal and legal, comparative and legal methods, logical analysis and synthesis, as well as the collection of information through the study of monographs, textbooks, materials of judicial practice on the subject under study. The article examines the features of the confiscation of pledged property. The authors make a conclusion that it is inadmissible to use the institution of compulsory succession in the case of the seizure of illegally possessed property. The use of compulsory legal succession leads to the significant violation of the subjective rights of particular government bodies and the state in general. This is expressed in the impossibility of full compensation for harm caused by corruption crimes. The main results of the study can be formulated in the form of proposals aimed at changing the legislation and the practice of its application. First, it is proposed to secure the inadmissibility of confiscation in cases of illegal possession of seized property and to introduce the following amendments to the Criminal Code: Article 104.4 of the Criminal Code of the Russian Federation «Compulsory confiscation of property»: «1. Compulsory gratuitous withdrawal from illegal possession of a person by turning into state ownership on the basis of a conviction is not confiscation...» Secondly, it is proposed to reword Art. 104.1 of the Criminal Code of the Russian Federation as follows: «1. Confiscation is a compulsory gratuitous seizure of property from the owner and its conversion into state ownership on the basis of a conviction. The following property is subject to confiscation: ... «Thirdly, it is proposed to complement the Civil Code of the Russian Federation with Article 347.1 «Pledgee’s Guarantees upon Termination of Pledge».

scholarly journals The arbitrariness of criminal punishment (the example of fine)

2018 ◽  
Vol 2 (3) ◽  
pp. 135-141
Author(s):  
V. M. Stepashin
Keyword(s):  
Russian Federation ◽  
Current System ◽  
Criminal Code ◽  
Legal Interpretation ◽  
Criminal Punishment ◽  
Judicial Practice ◽  
Analysis And Synthesis ◽  
The Subject ◽  
State Coercion ◽  
The Russian Federation

The subject. The paper deals with the problem of arbitrariness of criminal punishment in case of replacement of fine with other types of criminal penalties.The purpose of the paper is to identify the criteria to replace the fine to more severe kind of punishment.Methodology. The author uses the methods of analysis and synthesis, as well as dialectic approach. The formal-legal interpretation of the Criminal Codes and of the Russian Federation researches of familiar criminalists is also used.The main results and scope of their application. The arbitrariness of repression as its indicator means the possibility of changing the quality, quantity and (or) intensity of repression depending on the convicted person's compliance with the imposed regime, including the replacement of the assigned measure of state coercion with a more severe one.The author proposes a new version of pt. 5 of art. 46 of the Criminal Code of the Russian Federation. A new model of the consequences of non-payment of a penalty involves the observance of several conditions: 1) every sanctions, including penalty of a fine, should be submitted to the alternative punishment; 2) every sanction, including a penalty of fine and imprisonment, should be submitted to the "intermediate" punishment; 3) selecting the replacement of punishment should be due to unpaid fines and to provide a factual and not a formal toughening of punishment; 4) should establish the possibility of replacing the fine with imprisonment in proportion to the unpaid amount of the fine.The results of research may be used as the basis of correction of the Criminal Code of the Russian Federation and judicial practice. The paper may also inspire new researches concerning replacement of criminal punishment.Conclusions. The current system of replacing the fine does not correspond to the idea of saving repression. The new scheme of replacement of criminal punishment proposed in the paper is less arbitrary.

scholarly journals The Establishment of Criminal Responsibility for Retail Sale of Alcoholic Products to Minors: An Analysis of the Feasibility

Lex Russica ◽  
2020 ◽  
Vol 73 (10) ◽  
pp. 150-158
Author(s):  
K. V. Dyadyun
Keyword(s):  
Russian Federation ◽  
Criminal Responsibility ◽  
Integrated Approach ◽  
Criminal Code ◽  
Retail Trade ◽  
Retail Sale ◽  
Existing Problems ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation

The paper analyzes the objective and subjective features of article 151.1 of the Criminal Code of the Russian Federation. The problems of interpretation and application of this norm are investigated, taking into account the goals and objectives underlying its creation. Special legislation regulating the sphere under study is considered. The studied imperfections of regulation of the subject of the crime (the relationship between the concepts of alcoholic and alcohol-containing products), problems of distinguishing acts from related compounds (article 151 of the Criminal Code), the complexity of the classification. The analysis of crime-forming features is presented: "repeatability", "retail", and "sale". Imperfections of the legislative and law enforcement approach in this aspect are revealed. In particular, the key features and correlation of the concepts of wholesale and retail trade are analyzed; the problems of assessing what was done with remote methods of selling alcohol; the content aspects of the categories "duplicity and repetition" in the context under study. The question of the expediency of replacing the term "sale" with "illegal sale" in the disposition of article 151.1 of the Criminal Code of the Russian Federation is studied. The regulation of features of the subject of the studied elements is considered, and existing problems are identified. The question of the expediency of norms with administrative prejudice in the criminal law was raised. Some problematic aspects of sentencing for retail sale of alcoholic products to minors are identified; and issues of establishing the subjective side of the elements. The paper analyzes the opinions of various authors regarding the possibility of improving the norm of article 151.1 of the Criminal Code of the Russian Federation, taking into account the study of statistical data and materials of judicial practice. The author indicates the need for an integrated approach in the fight against alcohol abuse among young people. The conclusion is presented regarding the validity of the existence of the studied norm in the Criminal Code of the Russian Federation in the current version.

scholarly journals Theft vs find: theoretical and practical issues

2021 ◽  
Vol 2021 (3) ◽  
pp. 121-130
Author(s):  
Nikolay Ryabinin ◽  
Kseniya Filipson
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Civil Code ◽  
Theory And Practice ◽  
Controversial Issues ◽  
Main Research ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Definition Of

The purpose of the study is to analyze the features of legal relations regulated by Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation, as well as to identify and resolve the problems related to the proper legal definition of these relations. The main research methods are: structural-system, methods of logical analysis and synthesis, formallegal, comparative-legal, as well as collecting information through the study of scientific periodicals and materials of judicial practice on this issue. The article discusses in detail the features of the delimitation of relations arising in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation. The authors note that in the theory and practice of both criminal and civil law, one of the most controversial issues is the problem of differentiating a criminal offense under Art. 158 of the Criminal Code of the Russian Federation and acts that are not such (Article 227 of the Civil Code of the Russian Federation). So, to date, there is no consensus about the signs of differentiation of these compositions, and the criteria that have been developed at the present time are very vague and contradictory. Misinterpretation and application of norms when qualifying relations in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation does not allow citizens to protect effectively their rights and legitimate interests. Therefore, in order to prevent violations of civil rights, it is necessary to conduct a comprehensive scientific study of the features enabling to differentiate the above mentioned relations. Considerable attention is paid to the problem of appropriation of the found someone else’s property, when this property has identifying features. The authors define the types of property in the possession of the owner or any other type of legal owner, and also disclose the main characteristics of the specified property. In addition, the article formulates the authors’ definitions of such concepts as «finding» and «appropriation» of what was found. Based on the analysis of judicial and investigative practice, the authors propose the following recommendations for changing the legislation and the practice of its application in order to resolve controversial issues arising from the qualification of crimes against property. First, it is necessary to make clarifications in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 20 «On judicial practice in cases of theft, robbery and banditry» which property should be recognized as being in the possession of the owner or other legal owners and determine the characteristic features of such property ... Secondly, it is necessary to formulate and consolidate the legal definition of a find in the Civil Code of the Russian Federation. Thirdly, to return into Chapter 21 of the Criminal Code of the Russian Federation «Crime against property» the part «Appropriation of the found property».

scholarly journals On the Concept of the Subject of Corruption-Related Crimes Related to Passive and Active Bribery and Other Illegal Remuneration Types

2021 ◽  
Vol 3 ◽  
pp. 18-24
Author(s):  
Pavel V. Nikonov ◽  
Keyword(s):  
Property Rights ◽  
Russian Federation ◽  
Criminal Code ◽  
Unified Approach ◽  
Judicial Practice ◽  
Legal Science ◽  
The Subject ◽  
The Russian Federation ◽  
Open Question

To the question of the concept of the subject of corruption crimes related to receiving and giving bribes and other types of illegal remuneration Currently, the legal science has not yet developed a unified approach to understanding the subject of corruption crimes related to receiving and giving bribes and other types of illegal remuneration. The legal content of the subject of corruption crimes related to receiving and giving bribes and other types of illegal remuneration is disclosed in the dispositions articles 184, 290, 204, 2005, 2007 of the criminal code of the Russian Federation, which include money, securities, other property, property services and other property rights. At the same time, it remains an open question whether old-style banknotes and coins withdrawn from circulation, but subject to exchange, counterfeit money, or other property seized or restricted in circulation can be classified as such. Based on the study and analysis of judicial practice, the article presents the author’s approach to solving this problem and suggests measures to improve the current legislation.

scholarly journals Causation in criminal medical malpractice: a conflict of forensics and criminal law in the Russian Federaion

2021 ◽  
pp. 1-23
Author(s):  
Kirill Alekseevich Berchanskiy
Keyword(s):  
Russian Federation ◽  
Medical Malpractice ◽  
Criminal Policy ◽  
Medical Personnel ◽  
Criminal Code ◽  
Medical Examination ◽  
Judicial Practice ◽  
Forensic Practice ◽  
The Subject ◽  
The Russian Federation

The subject of this study is the judicial practice of Russian courts on cases commeneced against medical personnel under the Part 2 of the Article 109 of the Criminal Code of the Russian Federation – infliction of death by negligence due to improper performance of professional duties. The subject of research also includes the legal framework on the procedure for conducting forensic medical examination in the Russian Federation, medical legislation, as well as the relevant provisions of the Criminal code of the Russian Federation. The scientific novelty of this research connsists in the comprehensive approach towards its implementation, including the analysis of the current judicial practice of Russian courts on medical malpractice. As a result of this analysis, the main problems that Russian courts face when assessing the causal relationship in iatrogenic crimes, primarily committed by omission, were identified. Through a detailed analysis of the laws and bylaws governing the procedure for conducting a forensic medical examination, the author has identified possible reasons for discrepancies in forensic practice, which, in turn, lead to discrepancies in jurisprudence. Also, using the historical method of interpretation, the author revealed the existence and causes of significant contradictions in the relevant legislation. Using a comparative-analytical method applied to the Russian criminal and forensic legislation, the main problems that hinder the effective and fair consideration of iatrogenic cases at the moment are identified, and ways to solve them are proposed depending on the state's priorities in criminal policy.

Features of the criminal evaluation of objective signs of timber smuggling (Art. 226.1 of the Criminal Code of the Russian Federation)

2020 ◽  
Vol 2020 (4) ◽  
pp. 62-72
Author(s):  
Arbi Akiev ◽  
Daria Fisenko
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Modus Operandi ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Legislative Structure ◽  
The Moment ◽  
Objective Side ◽  
Enforcement Activity

In the article the authors examine certain problems of qualification of smuggling of timber being one of the types of strategically important goods and resources for the Russian Federation. These problems are stipulated by the specific of the legislative structure, as well as by the difficulties of interpreting this corpus delicti. Within the frame of the research it was established that that most difficulties in law enforcement activity arise in the course of criminal-legal assessment of the objective signs of timber smuggling and, mostly, of the subject of the corpus delicti under consideration and modus operandi of the crime due to the specifics of timber being the object of smuggling. In order to solve problems stated in the article, the authors analyze such ob-jective signs of corpus delicti provided for by Art. 2261 of the Criminal Code of the Russian Federation, as a subject and an objective side on the basis of materials of of-ficial statistics, judicial practice and criminal law doctrine. As a result of the conducted analysis the authors’ recommendations on the qualification of timber smuggling are formulated. Thus, the authors clearly identified the established in the current customs legislation a list of types of timber related to the subject of the crime provided for by Art. 2261 of the Criminal Code of the Russian Federation; the most common modus operandi of timber smuggling in judicial practice are explained; the moment of completion of the criminal encroachment under analysis is clarified, and the amount of damage necessary to qualify the timber smuggling under Art. 2261 of the Criminal Code of the Russian Federation are defined.

scholarly journals Coercion to Sexual Acts: Issues of Interpretation and Application

Lex Russica ◽  
2021 ◽  
pp. 54-66
Author(s):  
K. V. Dyadyun
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Code ◽  
Sexual Crimes ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Cis Countries ◽  
The Moment ◽  
Definition Of

The paper analyzes the features of the regulation of objective and subjective characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation, their influence on application of the aforementioned norm. The paper examines the category of "compulsion", the concept of "other sexual actions", their correlation with the definition of "sexual harassment". The paper resorts to legal and etymological approaches to the understanding and content of these terms, gives recommendations for improving the legislative and law enforcement practice in this area. The author analyzes the approach to the interpretation of the content aspects of compulsion—encouragement/compulsion. The issue of the moment of the end of the criminal act under consideration (process/result) is examined. The author determines and substantiates deficiencies in the regulation of methods of coercion to actions of a sexual nature. The concept of "dependence" in the considered area, its relationship with the state of helplessness is investigated. The essential and substantive characteristics of the threat as a method of coercion to sexual actions (criteria and their interpretation) are analyzed. Also, the author examines the issue of qualifying characteristics of the elements of the crime under Art. 133 of the Criminal Code of the Russian Federation and problems of interpretation of the characteristics of the subject matter, motives and purpose of this act. The complexity of the delimitation of the aforementioned criminal act from an insignificant offense, a moral offense, an administrative offense, and related crimes are indicated. The author also analyzes the issue of qualification of the act under Art. 133 of the Criminal Code of the Russian Federation and its impact on its relationship with violent sexual crimes. The paper presents an analysis of the legislation of the CIS countries on the issue under consideration and provides for historical summary about the evolution of the domestic legislative approach in the aforementioned area. The determinants of law enforcement problems are identified and indicated. Conclusions and recommendations are based on the study of judicial practice, researchers’ opinions, the RF Supreme Court standing, the rules applied to qualify criminal acts.

Murder Motivated by Blood Feud: Features of the Subject of the Crime

2021 ◽  
pp. 253-268
Author(s):  
Konstantin V. Korsakov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Legal Professionals ◽  
Judicial Practice ◽  
Long Time ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of ◽  
The Given

This article focuses on the resolution of issues and difficulties legal professionals encounter when qualifying criminal acts under Item e.1 of Part 2 of Article 105 of the Criminal Code of the Russian Federation (Item e.1). The issues and difficulties appeared when the 1996 Criminal Code entered into force and still exist. They are associated with the absence of a legal definition of blood feud in the text of the Criminal Code and other federal statutes, and also with the fact that Decision No. 1 of the Plenum of the Supreme Court of the Russian Federation, On Judicial Practice in Murder Cases, of 27 January 1999, both in the previous and in the current versions, does not contain any comments and clarifications on the characteristics of Item e.1. The greatest difficulties in investigative and judicial practice appear when determining the subject of the given crime. For a long time, the question of what kind of subject of the crime - general or special - is the subject of the crime envisaged in Item e.1 (formerly Item k of Article 102 of the Criminal Code of the RSFSR) continues to be controversial and open in the Russian criminal law theory. The author of the article has made a comprehensive critical analysis of the points of view, opinions, and approaches available in the criminal law doctrine regarding the definition of the type of subject in Item e.1 - murder motivated by blood feud; this has an important qualification value and directly affects the legal assessment of the criminal act provided for in this item. The article presents and examines the doctrinal provisions, court decisions, and norms of criminal law in terms of determining the type of subject of murder motivated by blood feud. The author proposed, explained, and scientifically substantiated a uniform approach to the definition of the subject in Item e.1; this approach can order the Russian law enforcement practice and resolve all the problems. The author also formulated conclusions supported by arguments and reasons. The conclusions confirm the correctness of the scientific and legal approach, according to which the subject of the crime envisaged in Item e.1 is special and should belong to a group of population which cultivates the custom of blood feud.

Cybercrimes against Property and Problems of Qualification and Correspondence of Actions Prohibited by Art. 272, 273 and 159.6 of the Criminal Code of the Russian Federation (on the Example of a Particular Judicial Decision)

2020 ◽  
Vol 4 ◽  
pp. 82-93
Author(s):  
Y. O. Kuchina ◽  
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Code ◽  
Judicial Decision ◽  
Judicial Practice ◽  
Digital Development ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

The interest in digital development and the specifics of its legal regulation does not practically affect the problems of applying the provisions of Chapter 28 of the Criminal Code of the Russian Federation and the qualifications of acts falling under the definition of «cybercrimes against property» and Art. 272 and Art. 273 in particular. Analyzing a judicial decision, the author on a practical example reveals the main qualification problems that currently exist in the judicial practice. The author states that the outdated and overly detailed definition «computer information» which is given in the note to Art. 272 of the Criminal Code, leads to the fact that the rules of law, in which this term is included, are applied erroneously. Considering how the perception of the meaning of dispositions of Art. 272, 273 and 159.6 of the Criminal Code of the Russian Federation, in cases of committing a crime in a virtual dimension, the author reveals the interdependence of the technical component of the subject of the crime and the place of its commission with the legal regulation of protected public relations and their external perception by the law enforcer. The article offers recommendations on the maximum elimination of possible errors in qualifications and shows on specific examples which particular signs and elements in the mechanism of a specific act affect the formation of erroneous law enforcement practice.

scholarly journals Failure to render medical aid to the patient (Article 124 of the Criminal Code of the Russian Federation) as an intended crime: a concurring opinion

2021 ◽  
pp. 24-48
Author(s):  
Kirill Alekseevich Berchanskiy
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Complex Nature ◽  
Medical Aid ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
First Time

The subject of this research the judicial practice of Russian courts for the period from 2010 to 2020 on crimes qualified under the Article 124 of the Criminal Code of the Russian Federation. The subject also includes: relevant provisions of the Russian, Soviet and foreign legislation; doctrinal research dedicated to such types of crimes and iatrogenic crimes in general; as well as crimes with two elements of guilt. The goal is to indicated the discrepancies in the practice of Russian courts, clarify the contributing circumstances, and develop proposals for their elimination. The scientific novelty of this work is dictated by integrity of the used data and methods, previously undisclosed factors of law enforcement and doctrinal contradictions, as well as conclusions that are formulated in the Russian criminal law science for the first time. The first conclusion of this research consists in determination of essential contradictions in the practice of Russian courts with regards to application of the Article 124 of the Criminal Code of the Russian Federation “Failure to render medical aid to the patient”. The author established that the reason for these contradictions lies in disparity of the researchers in the question of the subjective side of the crime. The cause of this phenomenon is of complex nature, including the influence of the previously refuted theory of the “mixed” element of guilt. The main result of this research consists in substantiation possibility of establishing the two elements of guilt in the act qualified under the Article 124 of the Criminal Code of the Russian Federation, which however results from the flaws of the legal technique. As a solution to this problem, the author offers the projects of reforming the domestic criminal law based on the adapted provisions of the German criminal law.

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