К вопросу о возможности отказа от субъективного права посредством неправомерного поведения

Abstract

Relevance. The rejection of subjective law is a phenomenon little studied in modern criminal procedure doctrine, as a result of which the question of the forms of behavior of participants in criminal proceedings, which determine the possibility of its implementation, remains unresolved. The definition of behavioral boundaries has both theoretical and practical significance: it contributes both to the enrichment of criminal procedure science, ensuring the proper level of legal protection of the individual in the field of criminal procedure relations, and acts as one of the guarantors of proper law enforcement. The purpose of the study is to develop an author's approach to determining the possibility of renouncing the right through the unlawful behavior of a person who has fallen into the sphere of criminal proceedings and its legal consequences. Objectives: to study doctrinal sources and judicial practice in order to establish the possibility of realizing the rejection of subjective law through both lawful and unlawful behavior; to identify the types of legal consequences of the rejection of subjective law, depending on the forms of behavior of a participant in criminal proceedings. Methodology. The methodological basis of the research is the provisions of the general scientific dialectical method of cognition of the surrounding reality in its connection and interaction, the general scientific systematic ap-proach. In the course of the work, formal legal, comparative methods and the method of observation were used. Results. The conclusion is formulated that the rejection of the subjective right is possible only in the form of lawful behavior. Based on the author's vision of the nature of the behavior of a participant in criminal proceedings, which may underlie the rejection of subjective law, the concept of "criminal procedural punishment" is developed, its characteristics are given. Conclusion. The waiver of the right is possible only on condition that the behavior of the participant in the criminal proceedings is lawful. Illegal behavior, expressed in the form of committing actions that violate the normal course of legal proceedings, naturally entails the reaction of the state in the form of depriving a citizen of his subjective right, which should be called "criminal procedural punishment".