Abstract
Criminal law is traditionally viewed as a branch of public law. Until recently, the category of “dispositivity” in the Russian theory of criminal law had not even been considered. However, it is argued that the development and reflection of dispositivity fundamentals in the criminal law shows the level of protection of law-abiding citizens and also serves as an indicator of activity of legal subjects in the field of criminal justice. The article attempts to define the concept of dispositivity in Criminal law, and explore its theoretical and applied aspects through conceptual (political and legal) and instrumental approaches. As a part of the conceptual (political and legal) approach dispositivity is treated as the common grounds of the field of legal regulation. As a part of the instrumental approach dispositivity is regarded as a method of legal regulation, property legal norms, as well as the mode of legal regulation. From the point of legal methodology we can speak of dispositivity in the Russian criminal law, since there are no «pure» or distinct fields of private or public law. Simultaneously with the imperative method of legal regulation, there may be the legal grounds for the dispositive legal regulation, and vice versa. The article also examines such manifestations of dispositivity in the Russian criminal law as self-defense, detention of the offender, a reasonable risk, reconciliation, prosecution at the request of a commercial organization or with its consent, the consent of a person to commit action which can present a risk of HIV infection, the consent of the victim to enter into marriage with the defendant.
Highlights
There is no doubt that the Criminal Code in any country of the world is a document of paramount importance, and the existing Criminal Code of the Russian Federation apart from being important seems to be a very progressive piece of legislation in modern Russia
The spheres characterized by imperative method of legal regulation can include legal relations regulated by the dispositive method and vice versa
As a part of the conceptual approach dispositivity should be considered as the concept of law, the common grounds of legal regulation or a basic principle
Summary
There is no doubt that the Criminal Code in any country of the world is a document of paramount importance, and the existing Criminal Code of the Russian Federation apart from being important seems to be a very progressive piece of legislation in modern Russia. The main point of this conclusion is that the legislature has made a considerable step towards improving the situation of the delinquent (or the criminal), and these measures are of applied and specific (and real) character. It is an important achievement of the Russian theory of criminal law. As for the protection and enforcement of the rights of law-abiding citizens, the formulation of legislation tends to have a declarative nature In this regard, there is a significant inconsistency between the legal position of the victim (the formal recognition of his/her rights) and the actual position of an individual in the field of criminal justice. Among others is the special commitment to Russian legislature traditions of the recent past and, above all, the idea of understanding the criminal law as a branch of public law only when "the state does not recognize anything private” [1, p. 9]
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