The Law Enforcement Officer

The study contains a step-by-step algorithm for determining the law applicable to private cross-border legal relations. The algorithm is developed based on legislation, law enforcement practice and doctrine. The initial rule of the sequential execution of the stages (steps) of the algorithm is a mechanism in which the determination of the law applicable to the legal relationship at one of the stages excludes the subsequent stages of the algorithm. Public policy interests dictate the rules for determining the law to be applied to private law relations complicated by a foreign element. The establishment by the legislator and law enforcement officer of the closest connection between the interests of conflicting public orders (legal orders) with elements of cross-border legal relations is the basis for the process regulation in the Russian Federation. At the first, second and third stages of the algorithm, the interests of the domestic public order (law and order) dominate. At the fourth stage of the algorithm, public interests in the part not regulated by super imperative norms are correlated with the agreement of the parties on the choice of the applicable law. At the fifth — eighth stages of the algorithm, the law enforcement officer is guided by the rules established by the legislator taking into account the interests of public orders that are conflicting in cross-border legal relations. At the last, ninth stage of the algorithm, the applicable law is established by the judge based on the closest connection between the interests of public order (law and order) with elements of crossborder legal relations.

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On the Need and Possible Options for Changing the Rules for Determining Forms of Guilt

Lex Russica ◽

10.17803/1729-5920.2021.174.5.087-102 ◽

2021 ◽

pp. 87-102

Author(s):

D. A. Kokotova

Keyword(s):

Law Enforcement ◽

Russian Federation ◽

Criminal Responsibility ◽

Effective Means ◽

Criminal Code ◽

Current Version ◽

Enforcement Officer ◽

The Russian Federation ◽

Law Enforcement Officer ◽

The Law

The current version of part 2 of article 24 of the Criminal Code of the Russian Federation, which appeared because of changes made to the Criminal Code of the Russian Federation in 1998, is rightly criticized for uncertainty. In the literature, various proposals are made to change the rules for determining the forms of guilt. The existing regulation needs adjusting, since it does not ensure the achievement of the initial goal of improving law enforcement, which was originally intended in part 2 of article 24, and does not comply with the principles of equality and legal certainty. The need to ensure compliance with these principles and achieve the original goal of the rule under consideration requires rejecting proposals to "legalize" the discretion of the law enforcement officer, the possibility of which arose due to the uncertainty of the current version of part 2 of article 24. Due to this uncertainty, compliance with the provisions of the Special part will not solve the existing problems. Unifying negligent crimes into a separate chapter, dividing the crimes in the existing chapters by paragraphs, depending on the form of guilt, is too difficult a way if we are talking about improving the current Criminal Code of the Russian Federation. Clear automatic consolidation of the possibility of both forms of guilt does not provide the required differentiation of punishment.Restoring the original version of part 2 of article 24 of the Criminal Code of the Russian Federation is an acceptable and easiest way, but there is a reason to believe that the rule changed in this way will fail to ensure that the law enforcement officer follows it. The inclusion of a form of guilt clause in the description of each body of a crime might be an effective means of limiting the discretion of the law enforcement officer, but this method is difficult to implement. It combines the features of these two methods of fixing the rule in the form of a list of crimes involving a particular form of guilt, by analogy with how the age at which criminal responsibility begins is now established.

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