On implementation of the Institution of criminal misconduct and the prospects for its extension to offences against intellectual property

Abstract

This article analyzes the draft law on implementation of the institution of criminal misconduct into the criminal legislation that was submitted to the State Duma upon the initiative of the Supreme Court of the Russian Federation. The author traces the history of the problem, difference between the new and the previous draft law, which has received a negative response from the Government of the Russian Federation, and thus has not been implemented. The newly introduced institution viewed from the perspective of cross-sectoral competition, systematicity of criminal legislation, terminological accuracy, adequacy of sanctions for different types of offenses, correlation between the institution of criminal misconduct and the institution of exemption from criminal liability. The author also raises the question on the impact of implementation of the new institution upon the workload of law enforcement and judicial branches. The following conclusions were made: the institution of criminal misconduct would extend the chain of concepts that cannot be clearly defined: crime – minor misconduct – criminal misconduct – administrative offence; such institution violates the system of sanctions for unlawful acts, as the sanctions  for most criminal misconducts are milder than for administrative offenses. The authors of the draft law underline the effectiveness of the norms on minor misconduct, administrative prejudice, and exemption from criminal liability, without clarifying the goals that cannot be achieved by these existing instruments. Most likely, the new institution would require increasing the workload of judges. The draft law violates the systematicity in establishing liability for infringement of intellectual property rights. It is recommended to include in the draft Paragraph 4 of the Article 15.1 of the Criminal Code of the Russian Federation reference to the Part I and Part II of the Article 146, and Part I of Article the 147 of the Criminal Code of the Russian Federation. The conducted research allows concluding that the draft law does not have sufficient criminological and criminal-legal scientific substantiation.