Zakonodavna reforma iz perspektive međudnosa pojedinih krivičnih dela

The article examines some issues of interpretation of the provisions of the Special Part of the Russian criminal law. Some debatable issues related to the subject of interpretation and the limits of the interpretation of the criminal law are outlined. It is indicated that the opinion about whether the judiciary can interpret the law, or only the legislator has such a right, is currently not popular. Most researchers believe that the judiciary has the right to interpret the criminal law. Attention is drawn to some types of interpretation. The issues of judicial interpretation of the Special Part of the Criminal Law are considered in more detail. Scientific works propose to consider two options for interpreting the criminal law: clarifications on a specific case and clarifications contained in the resolutions of the Plenum of the Supreme Court of the Russian Federation. The author comes to the conclusion that the resolutions on specific cases adopted by the Supreme Court of the Russian Federation most often precede the interpretation that will be contained in the resolutions of the Plenum of the Supreme Court of the Russian Federation, they set the vector for understanding the law, contribute to uniformity in understanding the provisions of the Special Part of the Criminal Law. Some limits of judicial interpretation of the Special Part of Criminal Law are named. In the judicial interpretation of the provisions of the Special Part of the Criminal Law the structure of the corpus delicti must not be changed. Criminal law is most often established to be valid for a long time. In the event of a significant change in social relations, it is the legislator that must decide to amend the article, recognizing it as invalid, rather than the court must define as criminal some acts which are not stipulated as such by the legislator in the Special Part of the Criminal Law.

The study discusses the significance of the Special Part of sectoral legislation. The article describes the prerequisites for the creation and development of the Special Part as a necessary structural macro-section of Russian criminal law. It is stressed that this structural component is not typical of modern Russian Codes since it is only found in the Criminal and the Penitentiary Codes of the Russian Federation. It is shown that the separation and establishment of parts in Russian legislation reflects a high level of legislative technique. The authors analyze the archetype of the Special Part in the pre-revolutionary legislation of Russia. They disprove the claims that the Special Part, as a component of the code, emerged as early as the 19th century. The authors also present the research of the theory and the analysis of the legislative practice between the total cancellation of the Special Part in the Soviet criminal legislation 1917–1921 and its re-emergence in the first Soviet Criminal Codes. Special attention is paid to the research discussions of the first quarter of the 20th century regarding the necessity and expediency of introducing the Special Part in the Soviet criminal law. It is established that a new approach to building Russian criminal law has been implemented since 1922, whereby the Special Part becomes its obligatory binary structural component. The significance of the Special Part is multifold. First, it consists in the implementation of the principles of criminal law. According to the principle of legality, the Special Part contains a comprehensive list of crimes and punishments for committing them. It is stressed that, by establishing the volume of the crime, the Special Part separates criminally punishable acts from other types of behavior, both lawful and unlawful. Secondly, the significance of the Special Part of criminal law consists in its being a «charter of personal freedom» as by marking the prohibited acts, it thus measures a person’s freedom. The Special Part is also significant because its clauses are aimed at protecting the most important social relations. It gives a definite answer to the question of which social goods are protected by criminal law. Finally, the Special Part reflects some specific strategic directions of criminal policy.

Topicality and issue of a subject-matter Collision of norms in criminal law is incompleteness of legal provisions concerning collision of norms in Criminal law, despite the fact that such legal provisions have been developed in legal doctrine and recognized in case law. Goal of an article is to summarize and show these legal provisions in order to help readers and law enforcers to discern between multiplicity and aggregation of criminal offences, and collision of norms of the Criminal law.In essence – collision of norms of Special part of Criminal law differs from multiplicity (especially a conceptual aggregation) of criminal offences with a count of criminal offences and bodies of the crime (corpus delicti) corresponding to such offences. In a case of multiplicity two or more separate (unitary) criminal offences correspond to two or more bodies of the crime (corpus delicti) which are set out in Criminal law. Collision of norms of Special part of Criminal law occurs where two or more bodies of the crime (corpus delicti) corresponds to one, separate (unitary) criminal offence.In collision between general and special norm of a Special part of Criminal law, special norm (provision) must be applied.In collision between partial (narrower) and complete (broader) norm of Special part of Criminal law, broader norm (provision) must be applied. If such partial (narrower) norm sets out more severe punishment than a complete (broader) norm, both norms must be applied in accordance with rules of conceptual aggregation.In collision between aggravating and mitigating norms (provisions) mitigating norm must be applied, that is – a norm with a lesser punishment.In collision between mitigating norms (provisions), more mitigating norm must be applied.In collision between aggravating norms, more aggravating norm must be applied, that is – a norm wish sets out more severe punishment.Collision of norms (provisions) in administrative violations law is also decided in accordance the same rules of legal norm collision resolution, despite the fact that Latvian Administrative violations code does not contain relevant legal provisions.

The questions of the internal structure and system of the special part of criminal law remain relevant in spite of a large number of scientific works on this topic. One of the complicated theoretical questions is the characteristics of the initial element of the branch of law’s system in criminal law. Scholars suggest using either the legal norm or the regulatory prescription as such an element. The discussion of their correlation is of much significance within the framework of the positivist theory of law. The author supports the ideas of the logical model of correlation between the norm and the prescription and claims that the criminal law norm, as a holistic rule of behavior determining the rights and liabilities of the participants of criminal law relations, consists of several regulatory prescriptions. From this position, the norm is a logical form of expressing some aggregate of regulatory legal prescriptions. The regulatory prescription of the special part of criminal law is the core determining the contents and structure of the criminal law norm. A significant theoretical issue is the correlation between the regulatory prescription and the text of the criminal law article. Using the logical categories of «concept» and «proposition», the author proves that criminal law prescription of the special part is not to be equated with the text of criminal law because their relationship is that of content and form. The logical form for the expression of a prescription is a separate sentence in the text of the Criminal Code’ Article, a proposition that expresses a complete legislative thought. The contents of the regulatory prescription of the special part of criminal law consist in establishing the grounds and limits of using measures of criminal law reaction against persons who committed crimes. The structure of such prescriptions includes the hypothesis that defines characteristic features of specific crimes, and the disposition that described the degree to which the state is free to decide on the choice of the type and amount of punishment that can be imposed on the guilty person. In order to observe the constitutional rules of formulating the criminal law prohibition and ensuring the logical norms of their expression in the text of the law, the author proves the necessity of phasing out the use of simple dispositions and the repetition of the title of the crime in the disposition.

The article examines the system of formal sources of Criminal Law, which, during consideration and analysis, is thought of as a set of forms of expression of criminally relevant information, differentiated depending on the content of information, subjects of its presentation, purpose in the mechanism of criminal law regulation and clearly falling into two related groups: related to the criminal law prohibition in as a whole and to the composition of the crime. As the main conclusion, a system of formal sources of a Special part of Criminal Law is proposed, consisting of two groups of acts: a) normative acts, which are represented by sources of establishing a criminal law prohibition (the Criminal Code and the code of responsibility for criminal acts of a low degree of danger) and sources of specifying the prohibition (resolutions of the Government of the Russian Federation and resolutions of the Plenum of the Supreme Court of the Russian Federation); b) non-normative acts, which are represented by sources of non-mandatory (doctrinal documents, acts of unauthorized state bodies, rulings of the Supreme Court of the Russian Federation) and mandatory (decisions of the Constitutional Court of the Russian Federation and decisions of the Presidium of the Supreme Court of the Russian Federation) interpretation.

Cave Principia Generalia! Two Problems with International Criminal Law's General Part

In compliance with the tendencies expressed in the most important regional documents and comparative criminal justice systems, in accordance with the 2012 Law on Amendments and Additions to the Criminal Code, the Republic of Serbia rejects the previously accepted approach to the treatment of terrorism as a criminal offense from Chapter XXVIII of the criminal offenses against constitutional order and security of Serbia and transfers it to Chapter XXXIV of the crimes against humanity and international law, leaving at the same time narrow, and in contemporary conditions unacceptable, approach to distinguishing between the criminal offense of terrorism aimed at a national state and international terrorism. The new approach to defining the criminal offenses of terrorism is characterized by three dominant features: the first, which deals with a single criminal justice offense of terrorism, regardless of its orientation against a national state, a foreign state or an international organization, the second, which formally takes away the character of a political criminal offense from the criminal offense of terrorism by changing the chapter in which it is systematized within a special part of the Criminal Code and, the third, which introduces even five new offenses in accordance with the solutions accepted in international documents and comparative law. The paper analyzes new criminal offenses from the subgroup of the criminal offenses of terrorism under Chapter XXXIV of the crimes against humanity and international law, which is the main task of the criminal law science in the field of special part of criminal law, as well as the assessment of the compatibility of the national corpus of criminal justice provisions with the relevant documents accepted at the level of the European Union, with an emphasis on the importance of harmonizing criminal justice solutions related to terrorism for its effective prevention and suppression. However, the focus is on the view that the criminal justice response in this area is justified and necessary, but only as ultimate ratio in the fight against terrorism, as one of the severe forms of crime.

Purpose. The purpose of the work is to study the criminal offenses of terrorism in the criminal law of foreign countries and to outline the limits of the use of its positive assets. The methodology. The methodology includes a comprehensive analysis and generalization of existing scientific and theoretical material and formulation of relevant conclusions. The following methods of scientific cognition were used during the research: comparative-legal, logical-grammatical, system-structural, modeling. Results In the course of the research it was recognized that in the criminal legislation of foreign countries there is no single approach to the definition of criminal offenses of terrorist orientation. In most European countries, prosecution is provided not only in the criminal code, but also in special laws to combat this phenomenon. At the same time, increased attention is paid to the fight against terrorist financing and incitement to terrorism. Also noteworthy is the attribution to terrorism of a significant number of illegal acts, which without a terrorist purpose constitute independent criminal offenses (murder, bodily harm, riots, robbery, damage to important public buildings, kidnapping, etc.). Scientific novelty. In the course of the research it is scientifically substantiated to divide the legislation on liability for criminal offenses of terrorist orientation into three models: 1) complex (combination of criminal law and specially defined for counter-terrorism legislation); 2) criminal law; 3) criminological, in which the fight against terrorism is reflected only in specialized legislation. Practical significance. The results of the study can be used in law-making activities in further improving the national criminal law on terrorist offenses, as well as in the educational process during the teaching and study of disciplines "Special part of criminal law of Ukraine" and "Criminology".

The lecture is devoted to the issues of the concept of the Special part of the criminal law of Ukraine, the system of the Special part of the current legislation of Ukraineon criminal liability and the meaning of the Special part of criminal law, as well as to the issues of the scientific foundations of qualifying criminal offenses. The stink of qualification, qualification formula, legal basis of qualification and the importance of the official qualification of criminal offenses are considered.

Introduction. The article is devoted to the disclosure of one of the important issues of modern criminal law - the institution of complicity. Complicity is the doctrine that another person (accomplice) may be held liable for a crime if he or she facilitated, aided, abetted, encouraged, demanded, or directed another person's criminal activities. This includes assistance in committing a crime before, during and after the crime. The relevance of the research topic is that complicity by its nature is more socially dangerous than a criminal offense committed by one person, and therefore leads to more harmful consequences. The study of the causes, nature and types of complicity makes it possible to consider in more detail each of the gaps that have arisen in criminal law and eliminate them in the application of law in practice in the future. That is why, in our opinion, the chosen research issues are very relevant at the moment due to a number of important conditions, including the beginning of a full-scale russian invasion of Ukraine and mass atrocities committed by russian occupiers in our cities. Purpose. The purpose of this article is to present the basic concepts, types and responsibilities of different types of accomplices for criminal offenses, determine the importance of a more detailed study of such an institution of criminal law, compare the main legislative aspects of the institution of complicity in national law and international criminal law. Materials and methods. The materials of the study are: 1) the legal framework for the ratio of institutions of participation in national and international law; 2) works of domestic and foreign scholars, the research topics of which are scientific and practical research in the field of national criminal and international criminal law. In the course of the research we used the following scientific methods: theoretical generalization (for the general characteristics of the institute of complicity, research of its forms, types, significance of this research); analysis and synthesis (drawing parallels between the norms of Ukrainian criminal law and international law); historical (study of the formation of approaches to determining the institution of complicity); generalization of results (formulation of conclusions). Results. The practical significance of our study lies in the huge role of clarifying the nature of complicity, its social danger and illegality for the fair and legal treatment of criminal offenses committed in several persons. Discussion. Research into the problems of this institution can further help to resolve the confusing issues related to bringing those who have committed criminal offenses in complicity to criminal liability, including international law, for crimes committed in military conditions.

The article examines the historical aspects of the formation and development of a Special part of the Russian Criminal Law. The analysis is based on legal monuments of the X - beginning of the XX century and literary sources. The research is developing in three main directions: a) the ratio of the law and other forms of expression of criminal law prescriptions (here the process of transition from customs to the law as the only means of expressing criminal law norms is revealed); 2) types and system of criminal laws (here the transition from intersectoral laws to the formation of a specialized Criminal Code is shown); 3) systematization of criminal law regulations (here the issues of classification of crimes and structuring of criminal law institutions are revealed). As the main result, it is summarized that by the beginning of the XX century, the idea of creating an independent criminal law was not only implemented in the country, but also, firstly, the principle of its pandect structure was put into practice, suggesting the isolation of its Special part in the structure of the Code and, secondly, the principle of building the most Special part, based on the institutional structure of the industry and the content of goods protected by law.

Throughout history, criminal law has known several definitions, all of which finally have its presentation as a branch of law, made up of a totality of legal norms, which establish the facts that constitute crimes, the conditions of criminal liability, the sanctions and the manner of their application. From the presented definition, we can deduce the fact that criminal law is a distinct branch of law, along with civil, administrative, constitutional, commercial law. Also, it is composed of the general part and the special part, but the structure is unitary, one cannot exist without the other. The general part provides the general rules, rules on how to apply the law, the governing principles, the typicality of crimes, the manner and rules of sanctioning. Instead, the special part of criminal law includes the rules of criminalization and the content of crimes. Consequently, criminal law aims to defend legal values against crime and at the same time combat it, especially, criminal law is the main guarantor of the norms and rules provided by the Romanian Constitution, having as its main objective the independence and unity of the state as well as the safety of citizens.

The fragmentary application of the principle of legality in European criminal law is a consequence of deeper deficiencies regarding the system's legitimacy. The attribution of criminal law competences to European institutions has been determined to be mainly a reflex to the negative consequences of abolishing internal borders, although an incremental shift towards a more principled criminal justice has been noted. Currently, principles such as ultima ratio , proportionality, legality and guilt are considered to govern European criminal law, at least in theory. However, the theoretical foundations of the European ius puniendi and what these principles represent remain unclear. Does European criminal law offer a form of protection to individuals against arbitrariness, and if so, what would be the nature of such protection? Questions about the instrumental finality are also in order. What is the rationale of combating cross-border crime or facilitating judicial cooperation? Often, boosting freedom of movement has been cited as the raison d’etre, but just how far can this argument go? In principle, every harmonisation of criminal offences would serve this purpose. This Chapter will discuss the legitimacy of European criminal law. As with national criminal law, the function of the legality principle in EU law depends on how criminal law is legitimised. It was explained in Chapter I that the legality principle has a legitimising function. Criminal law legitimacy was defined as the justification of coercive power. To construct a theory for this principle in EU law, it is important to understand what type of legitimacy it should provide. However, the question of legitimacy is quite complex. The European criminal justice system presents various unprecedented particularities that create a matrix of interrelated problems. First, in national law, the main focus of the principle of legality is the relationship between individuals and the state. But the relationship between the EU and individuals in the field of criminal law is not clear. The purpose and nature of the EU in the field of criminal law is also uncertain. European criminal justice forms a part of the European legal order to which its purpose and nature are strongly connected.

The article reveals the criminal law characteristics of war crimes in the International Criminal Law, International Humanitarian Law and under the National Criminal Law. The category of “war crimes” is analysed and its Criminal Law description is made in terms of substantive, international and national components in the context of combining theoretical and applied aspects of war crimes research. A comparative analysis of war crimes in both International Criminal Law and National Criminal Law has been made, with the examples of application of Article 438 of the CC of Ukraine from judicial practice provided, and the legislative regulation of the term “war crimes” in the CC of Ukraine has been proposed, given the trend of clear separation of the category of war crimes which has been observed since the beginning of the armed conflict in Ukraine in the National Criminal Law science and in law application which remains doctrinal. The range of problematic issues of interpretation and enforcement of Art. 438 of the Criminal Code of Ukraine arising in court practice in the course of implementation of this provision has been outlined, such as the “international legal” blanket nature of the disposition of Art. 438 of the CC of Ukraine, the need for ratification of the Rome Statute and implementation of its provisions into national legislation, low sanctions for war crimes, distinguishing war crimes from other international crimes, as well as war crimes from “general criminal” offences provided for in other articles of the Special Part of the CC of Ukraine. It has been proved that courts in criminal proceedings should establish a contextual element when qualifying violations of the laws and customs of war under Article 438 of the CC of Ukraine as an independent element of war crimes, which makes it possible to distinguish them from "general criminal" offences provided for in other sections of the CC of Ukraine. The low sanction of Part 1 of Art. 438 of the CC of Ukraine has been stated and proposals have been made to strengthen it in order to establish in the Criminal Law a relevant punishment for persons who committed war crimes during the armed conflict in Ukraine, which is a requirement of today.

The following chapter deals with the general and special part of criminal law from a gender perspective. It analyses, in particular, the provisions from the Council of Europe Convention on preventing and combating violence against women and domestic violence, the Istanbul Convention, from 2011. The Istanbul Convention is the most comprehensive international legal instrument that outlines binding obligations to states to prevent and combat violence against women and girls. Furthermore, the Istanbul Convention contains several institutes and behaviours that have to be criminalised in the respective national jurisdictions, covering and combining dogmatics and criminal policy issues with a foundation substantially based on gender. The chapter also explores gender issues in a more general way, interpreting criminal law and its challenges towards gender equality. The special part raises questions regarding criminal law and its compatibility with the Istanbul Convention and national laws.