Применение уголовного закона по аналогии

Abstract

The paper is devoted to the analytical review of cas-es of application of criminal law by analogy encoun-tered in the practice of the Supreme Court of the Russian Federation contrary to the requirement pre-sented in part 2 of article 3 of the Criminal Code of the Russian Federation. The application of criminal law by analogy is demonstrated on the example of resolving the issue of the crime scene on the basis of the statement on the time of the crime (part 2 of article 9 of the Criminal Code of the Russian Federa-tion). Examples of the application of criminal law by analogy include the long-term problem of imputing the qualifying attribute (including aggravating cir-cumstances) “a group of persons” and “a group of persons by prior conspiracy” to persons who com-mitted crimes together with insane or minors. To exclude the application of criminal law by analogy in this case the author proposes to make an amend-ment to article 35 of the Criminal Code of the Rus-sian Federation, in the first part of which it is neces-sary to mention that “a crime is recognized as com-mitted by a group of persons if two or more persons directly participated in it without preliminary con-spiracy, regardless of the fact that one of the per-sons is not subject to criminal liability due to age, insanity or other circumstances provided by this Code”. The application of criminal law by analogy is considered on the example of the solution of the issue on which correctional institution is supposed to be assigned to a person who has committed a deliberate crime of minor gravity, served a sentence of imprisonment for the crime and intentionally committed the same crime, for this issue is not regu-lated in article 58 of the Criminal Code of the Rus-sian Federation. How, according to article 285 of the Criminal Code of the Russian Federation, the quali-fication by analogy of intentional non-performance of their duties by an official (the so-called “inaction of the authorities”) is considered? It is concluded that despite the legislative prohibition of the appli-cation of criminal law by analogy, this method of filling the gaps in criminal law is used in judicial practice. In this regard, the issue of the appropriate-ness of further maintaining the absolute prohibition on the use of this method of filling the gaps in crim-inal law is relevant. The author proposes to recon-struct part 2 of article 3 of the Criminal Code of the Russian Federation so that when applying criminal law by analogy the law enforcer could choose to apply such a similar criminal-law norm that improves the situation for the person who committed a crime compared to similar consequences for persons to whom criminal law is applied without the use of analogy.