Abstract
Introduction: the article considers lawful and unlawful acts as major types of legal facts that influence the functioning of penal relations. In the theory of law, these legal phenomena have remained virtually outside the scope of scientific attention; such a situation is contrary to the needs of penal science and application practice. Aim: by analyzing lawful and unlawful acts, we seek to identify features, signs and internal content of these legal facts, to identify issues related to enacting the analyzed legal phenomena in the norms of law, and to determine ways to address these issues. Methods: comparative legal method, empirical methods of description and interpretation; theoretical methods of formal and dialectical logic, interpretation of legal norms. Results: the analysis of lawful acts allowed us to identify their features, internal content and recommendations for their consolidation. Having studied unlawful acts, we were able to consider the essence, types and features of objectively illegal acts committed by convicts. Conclusions: when studying lawful acts, we formulated a conclusion that the legislator should exclude lawful omission where it “intersects” with the obligation of the subject of penal legal relations to act (when the right of the subject is, in fact, their duty). The article summarizes, that the commission of an objectively illegal act by the convict should not be the basis for bringing them to liability. Legal facts that indicate a different (not objectively illegal) delinquent behavior of a convict, regardless of its type, should entail that the convict be held liable mandatorily. However, the legislator does not record these infringing legal facts in the chapters that regulate the execution and serving of sentences in the form of deprivation of the right to hold certain positions or engage in certain activities, in the form of arrest and all types of punishments intended for military personnel; all this, we believe, significantly complicates the development of penal legal relations. Keywords: legal facts; lawful acts; unlawful acts; penal legal relations; objectively illegal acts; unlawful omission; lawful omission
Highlights
The theory of legal facts does not belong to the new branches of legal science; pre-revolutionary and Soviet jurisprudence, legal scholars of modern Russia [3; 6; 15; 19] and foreign countries tried to tackle problems related to facts [16–18].noting a high level of scientific elaboration on the theory of law, we have to admit that the facts that influence the functioning of penal relations have remained outside the scope of scientific attention; such a situation does not satisfy the needs of penal science and application practice
Noting a high level of scientific elaboration on the theory of law, we have to admit that the facts that influence the functioning of penal relations have remained outside the scope of scientific attention; such a situation does not satisfy the needs of penal science and application practice
In this case we are interested in the absence of penalties for violation of the established order of serving a sentence, which may be formed only if there is a legal symbiosis between the lawful action and compliance with binding norms and the lawful omission oriented toward observance of the norms that prohibit, for example, consumption of alcoholic beverages or narcotic drugs or psychotropic substances, disobedience to prison administration, gatherings of convicted persons for the purpose of committing offenses, etc
Summary
The theory of legal facts does not belong to the new branches of legal science; pre-revolutionary and Soviet jurisprudence, legal scholars of modern Russia [3; 6; 15; 19] and foreign countries tried to tackle problems related to facts [16–18]. Lawful legal facts-actions of the subjects of penal legal relations with the use of permissive norms comply with the following requirements (features):. – the refusal of the subject to perform legitimate legal facts-actions based on the implementation of binding norms should ensure that the subject of penal legal relations be brought to liability mandatorily;. – the performance of these legal facts-actions may or may not satisfy the interests and needs of the persons who perform them (for example, when a convict sentenced to imprisonment arrives at their workplace, this fact may or may not represent a legitimate legal fact-action that generates legal relations satisfying the interests and needs of the convict) These legal facts are represented in penal law by a large number of legal prescriptions. If a convict purchases foodstuffs (Article 88 of the RF Penal Enforcement Code) the fact of purchase, which is aimed at imple-
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