Criminal Law Institutions Research Articles

ПОВІДОМЛЕННЯ ПРО ПІДОЗРУ У КРИМІНАЛЬНОМУ ПРОВАДЖЕННІ УКРАЇНИ

The article examines and analyzes the issue of notification of suspicion in criminal proceedings in Ukraine. A comparison of the legislation of Ukraine and other states regarding the notification of suspicion was made. The problems of making a report of suspicion, the negative consequences that such a phenomenon entails, are outlined. On the basis of the analysis of the Criminal Procedure Code (hereinafter - CPC) of Ukraine and other countries, proposals are proposed to improve the legislation, eliminate gaps related to the notification of suspicion in criminal proceedings and proving the circumstances of a criminal offense. It is noted that despite the fact that the Criminal Procedural Code of Ukraine has been adopted for almost ten years, problematic issues still arise when deciding the procedure for applying the norms of this Code, during proving, collecting evidence for notifying a person of suspicion. In the CPC of Ukraine, two chapters - 22 and 37 - are devoted to the procedure of reporting a suspicion, which emphasizes the importance of this institution. It is noted that the legislator purposefully draws attention to this institution of criminal procedural law, and at the same time does not completely regulate and specify norms of such a nature that would exclude the possibility of controversial issues of notifying a person of suspicion. It is also stated that the violation of the law, which can be allowed by the prosecuting party when notifying a person of suspicion, usually leads to significant restrictions on the rights and freedoms of citizens. It was noted that the evidence, which is obtained legally and which makes it possible to make an assumption about the commission of a criminal offense by a certain person, should be recognized as evidence sufficient for the notification of suspicion. A legally adopted decision to notify a person of suspicion contributes to the achievement of the objectives of criminal proceedings, namely: improving the state of legality, protecting the rights and freedoms of citizens, as well as ensuring a quick, complete and impartial investigation.

Հակաիրավական ոտնձգություն կատարած անձին բռնելիս վնաս պատճառելու որոշ հիմնախնդիրները ՀՀ քրեական նոր օրենսգրքի համատեքստում

The purpose of the article is to study and identify the criminal law features of the institution of harming the person who committed illegal harassment. Its place in legal institutes among the circumstances excluding the criminality of the act, also its difference from other circumstances excluding the criminality of the act. One of the important criminal law institutions for the prevention of crime is to cause harm while catching a person who has committed a crime. During the research, private scientific methods were used: comparative-legal, formal legal analysis, historical methods. The work also used general logical methods: induction, deduction. Summing up, it is necessary to make certain changes in the definition of this institution. In particular, the socio-legal nature of the given institution, the bases and conditions of the legality of the damage caused, the permissible limits of causing damage should be clarified.

Formation and transformation of the State Institute of Judicial Investigators: historical and theoretical foundations actual criminal law institutions of Russia of the XIX century

Formation and transformation of the State Institute of Judicial Investigators: historical and theoretical foundations actual criminal law institutions of Russia of the XIX century

The Development of the Norms and Institutions of Criminal Law in the Transcaucasia Region at the Beginning of the 19th Century

The authors study the development of criminal law in the Transcaucasia region of the Russian Empire in the early 19th century, and discuss the political and legal significance of the accession of Transcaucasia to the Russian Empire. The normative basis of the research is various agreements of the Russian Empire, including agreements with the Khanates of Northern Azerbaijan, the acts of the supreme power —decrees, manifests and instructions, as well as the corresponding narrative materials. The methodological basis of this research is the general dialectic method of scientific cognition, the methods of empirical and theoretical character: description, formalization, comparison, analysis, generalization, deduction and induction, hypothesis, as well as the special legal methods: formal legal, comparative legal. Research results made it possible to prove that, before Transcaucasia joined the Russian Empire, social relationships in the region, including criminal law ones, were regulated by both written and common law, and that state and political changes lead to changes in criminal legislation throughout the whole history. When Transcaucasia, which has a multi-national and multi-confessional population, joined the Russian Empire, the central government faced the task of working out a special criminal law policy of protecting the society from criminal infringements, as well as some other goals and tasks in this area. The authors determine the degree to which the borderland policy of the state influenced the development of the borderland criminal policy, describe legal acts that enacted changes in the criminal legislation. Special attention is paid to describing the institutions of criminal law that underwent changes though the participation of the state in this process; specifics of the goals and tasks of government coercion, as well as the general basics of sentencing are evaluated. The conducted analysis of the contents of historical legal acts allowed the authors to conclude that, after joining the Russian Empire, the essential tasks of the criminal law of Transcaucasia were, for the first time, formulated at the normative level, including such tasks as crime prevention and the protection of individuals and public safety from criminal infringements. The fundamental principles of humanism and justice, different from the previously dominant ones, were established in the criminal law.

Comparative Analysis of the Institutions of Monetary Recovery and Court Fines in Criminal, Arbitrazh, Civil and Administrative Proceedings

The purpose of the paper is to identify differences in the normative fixing of the universal procedural institution of a court fine (monetary penalty) that are not justified by industry specifics. The method of comparative law was the determining method of research. The paper compares the titles, structures, sizes, grounds, subject composition, the procedure for considering and appealing the imposition of procedural sanctions under the Criminal Procedure Code of the Russian Federation, the Commercial Procedure Code of the Russian Federation, the Civil Procedure Code of the Russian Federation and the Administrative Procedure Code of the Russian Federation. The wording «court fine» in the criminal procedure and other types of procedures denotes completely different concepts. The application of a monetary penalty is limited to an excessively narrow list of subjects. The Criminal Procedure Code of the Russian Federation provides for a low and undifferentiated size of the sanction; the issue of the possibility of appeal has not been resolved. The author proposes to borrow relevant solutions to these issues from the compared institutions of other procedural branches. The author substantiates the necessity of convergence of universal institutions of criminal procedural, civil procedural, arbitrazh procedural and administrative procedural law, as well as the belonging of the institute of procedural responsibility to the number of universal ones.

ANALYSIS OF THE STATE OF SCIENTIFIC RESEARCHES OF SENTENCE ENFORCEMENT IN THE FORM OF IMPRISONMENT CONCERNING JUVENILES IN UKRAINE AND EUROPEAN MEMBER STATES

The article is dedicated to the analysis of the state of research the scientific development of problems of a fine as a type of minors’ punishment. The author draws attention to the fact that the level of scientific research of a fine seems to be insufficient. It is pointed out that modern Ukraine needs to create and improve criminal law institutions that would be able to solve modern problems, one of which is to review the peculiarities of criminal responsibility and punishment of juvenile offenders. The topical issue is juvenile delinquency, which is a burden both for families, the competent authorities that control these issues, victims of this type of crime, and for society as a whole. At present, the criminal legislation introduced by the Criminal Code of 2001 has a special section, which, unfortunately, does not reflect today’s realities, and therefore is not able to prevent the growth of juvenile delinquency fully due to a number of problems. One of such problems is using of certain types of punishment, including fines. In the theory of criminal law, the issue of fine applied to minors is one that needs to be studied thoroughly. In most scientific papers of different scholars, the emphasis is on the system of punishment. At the same time the analysis of individual species is ignored. To date, the following issues remained unsolved: the establishment of the most adequate amount of a fine that can be applied to a juvenile offender will remain open; emphasis on the expediency of applying alternative fines to adolescents who have committed socially dangerous acts; formulation of an objective definition of a fine as a type of punishment for a minor; expediency of application of property types of punishments to teenagers; compliance of the domestic system of property penalties with international legal standards, etc. It is indicated that a fine is a minimally repressive measure of punishment against both adults and juvenile offenders that allows to differentiate the criminal law impact depending on the severity of the act committed. Key words: own income, minor, punishment, fine, criminal legislation, criminal responsibility, criminal offense, property punishment, forfeiture of pay, compensation for damages.

An Unsuccessful Attempt at a Systemic Analysis of the Fundamental Institute of Criminal Law

An Unsuccessful Attempt at a Systemic Analysis of the Fundamental Institute of Criminal Law

PHARMACEUTICAL LAW: CRIMINAL ASPECTS

The author, considering the possibility of the emergence of a new branch of law in the future - pharmaceutical law, focuses on the complexity of regulating the sphere of turnover of medicines, at the same time pointing to this as the main reason for the uncertainty of the legislator in matters of the correctness of the choice of the object and subject of legal regulation. The author, citing examples from practice, draws attention to the fact that pharmaceutical activity is gradually becoming the object of regulatory regulation of various legal institutions, where the turnover of medicines, as well as medicines and other products containing raw materials of a medicinal nature, can be subject not only to the rules of civil turnover, as well as other special acts, but also to the norms of criminal law. The purpose of the study: To analyze the criminal legislation of the Russian Federation, including articles of the Criminal Code that establish responsibility for crimes in the field of pharmaceutical criminal law. Methodology and methods: the article uses both general scientific methods of analysis, synthesis, deduction, induction, and the method of interpretation of legal norms, which together make it possible to more effectively analyze the institutions of criminal law and determine the directions of development of the norms of pharmaceutical criminal law. Conclusions: as a result of the study, the author consistently substantiated the conclusion that the scope of application of criminal legislation in the control of pharmaceutical activities is expanding, at the same time, frequent violation of established prohibitions and regulations in the turnover of medicines suggests that the dialectical component of this issue is in an active phase of development, which indicates the inevitability (regularity and expediency) of the separation of a group of norms into a relatively autonomous group, which may be called pharmaceutical criminal law.

The Main Signs of the Duality of the Specialist Position in Criminal Proceedings

The author examines the problem of the special knowledge functioning in criminal proceedings. By synchronizing the institutions of the criminal procedure that regulate the legal relationship between the knowledgeable persons and the institution of criminal law regulating the responsibility of these participants in the commission of a crime against justice, the author demonstartes asymmetry between the rights and duties of a specialist. The subject of the study is constituted by the contradictions between the institutions of procedural and substantive law, namely, the discrepancy between the procedural complex (rights, duties, functions) of a specialist to the course of his criminal responsibility. For this purpose, a comparison is made between the rights and obligations of knowledgeable persons, based on the criteria of: a) the scope of procedural functions; b) the specificity of procedural rights and obligations; c) actual forms of special knowledge acceptable as evidence. On the basis of the revealed contradictions, the situation of competitiveness of special knowledge is investigated; the legal significance of the forms of special knowledge is determined. The author proposes a systematic solution, namely: 1) to clarify the procedural status of a specialist: to add the definition of “forensic specialist” to Art. 58, 61, 71, 74, 80, part 4 of Art. 164, art. 168, 251, 270, 271 of the Code of Criminal Procedure of the Russian Federation; 2) to clarify the epistemological aspects of the research functions of a specialist in accordance with Part 3.1 of Art. 74, art. 80; Part 1.2 of Art. 144 of the Code of Criminal Procedure of the Russian Federation; 3) to establish a mechanism for the responsibility of a specialist for giving a deliberately false opinion: to add to Art. 58 of the Criminal Procedure Code of the Russian Federation, part 5 by analogy with part 5 of Art. 57 of the Code of Criminal Procedure of the Russian Federation; to supplement the text of Part 1 of Art. 144 of the Code of Criminal Procedure of the Russian Federation; to correct the content of Art. 307 of the Criminal Code of the Russian Federation. Or release the specialist from criminal liability for the opinion expressed by him (even if it is deliberately false). The author proves that the proposed measures will promote adversarial evidence, increase the specialist’s subjective responsibility for the conclusion given by him, which corresponds to the institution of proving.The main research methods are: general scientific methods, review and analysis of legislative sources, contextual method, semantic analysis and formal logical analysis.

ABOUT SOME QUESTIONS OF QUALIFICATION OF PETTY THEFT COMMITTED BY A PERSON SUBJECTED TO ADMINISTRATIVE PUNISHMENT

The article examines the problems of administrative prejudice in the criminal law on the example of the operation of regulations stipulated in the Article 1581 of the Criminal Code of the Russian Federation. A legal and technical analysis of the composition of petty theft of other peoples property, committed by a person subjected to administrative punishment. Some controversial issues of qualification of the analyzed criminal offense are considered. Attention is focused on the moment of the end of petty theft of other peoples property, committed by a person subjected to administrative punishment. The issue of necessity and expediency of increasing the cost threshold of petty theft of other peoples property is considered. The article also suggests other ways to improve the criminal legislation of Russia and the practice of its application, aimed at reducing the level of mercenary property crime in the country. It is shown that despite the fact that the appearance of Article 158.1 of the Criminal Code of the Russian Federation is connected with the introduction of administrative prejudice and, as a result, the criminalization of acts provided for by this Code, the latest law enforcement practice shows an insufficiently high level of effectiveness of this criminal law institution.

On the Issue of Criminal Liability of Legal Entities in the Russian Federation Through the Prism of Harmonization of Law

Introduction: despite the fact that the first legal entities appeared in Ancient Rome, the modern Russian legislation refers to them only as the subjects of civil and administrative responsibility. In accordance with the Criminal Code of the Russian Federation (hereinafter, referred to as UK RF), only sane individuals who have reached the age of criminal responsibility are subject to criminal liability. Against the background of this provision, the possibility of introducing the criminal liability of legal entities, at first glance, is rather doubtful. The arising doubts are also supported by the fact that neither a single principle, no a norm or institution of criminal law of the Russian Federation is applicable to a legal entity. However, in the vast majority of foreign countries, this institution has been successfully operating for many years, during which it has shown the validity and the objective necessity of its existence, in whose connection the authors aim to investigate the problems of introducing the criminal liability of legal entities in the Russian Federation. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the methods of systematicity, abstraction, analysis and comparative law. Conclusions: as a result of the study of the domestic, international and foreign experience, in particular, the international treaties of the Russian Federation and the criminal legislation of various countries, the proposals are formulated for the legislative regulation of the criminal liability of legal entities in the Russian Federation, as well as the need for further legal rethinking of the problem, which will be expressed in drawing public attention to the importance of this issue, its legislative regulation, the review of previously submitted draft federal laws on introducing the criminal liability of legal entities in order to identify and eliminate the provisions that prevent their adoption.

BIOLOGICAL SAFETY: MODERN CHALLENGES (CRIMINAL LAW ASPECTS)

This article presents a study on a topical and highly controversial topic of criminal law protection of modern biosafety of the Russian Federation. The paper presents a qualitative study of the relatively new term for the domestic legal order, "biological safety" in the context of its criminal law protection. Purpose of the study: to analyze the modern criminal law opposition to the use of pathogenic, bioactive agents that are different in nature and are used purely for criminal purposes. Methodology and methods: the article uses both general scientific methods of analysis, synthesis, deduction, induction, and the method of interpreting legal norms, which make it possible to better comprehend the institutions of criminal law and determine the main directions of their development. Conclusions: based on the systematization of normative and doctrinal sources in the designated area, the author highlights the most relevant manifestations of biological security threats, offers tools for effectively countering socially dangerous acts committed using pathogenic biological agents. In order to more effectively ensure the biosafety of the state, society and the individual, the author proposes the adoption of a special Federal Law designed to eliminate gaps in Russian legislation.

Legal Policy of the Republic of Kazakhstan in Counteracting Terrorism and Religious Extremism

The article discusses the problems of legal policy of the Republic of Kazakhstan aimed at counteracting terrorism and religious extremism. The goal of research is the development of political and legal mechanisms of preventing terrorism and religious extremism in modern Kazakh society, the analysis of key reasons behind the spread of extremist attitudes among some believers, the study of key factors behind the extremist religious ideology. The methodological basis of this research is the dialectic method freed from materialistic or idealistic monism and grounded in pluralistic, multi-linear interdependence of all political and legal phenomena. The authors used formal-legal and comparative-legal methods. They researched the State Program of Counteracting Religious Extremism and Terrorism in the Republic of Kazakhstan in 2018–2022, which foresees predominantly preventive measures. The key task of ensuring state security in a rule-of-law state with a well-developed legal system, which the Republic of Kazakhstan is, mainly consists in the development and successful enforcement of legal mechanisms of governance. In the modern world, religious and political extremism remains a phenomenon that destroys the basis of state power and the system of state governance, instigates hatred of representatives of other religious denominations, and contradicts the standards of morality and public behavior. Terrorism and religious extremism are a real threat to stability not only for the Republic of Kazakhstan, but for all countries of the world. The improvement of basic aspects in the criminal sphere, including the prevention of specific terrorism-related crimes, remains very topical today. The classification of criminal law norms connected with counteracting terrorism and religious extremism is based on a number of key indicators of criminal policy and fundamental criminal law institutes, whose description constitutes the main body of this article.

How Is Criminal Punishment Forward-Looking?

Abstract Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders.

The historical continuity of criminal law institutions in the russian legislation and reception of legal norms: viewpoints on crime and punishment

This article is concerned with the historical continuity of such criminal law institutions as crime and punishment with due regard to changing views on components of crime and the imposition of penalty. The authors have conducted a comparative-legal analysis of the sources of criminal law in Russia, considered the influence of the Greco-Roman, Byzantine, Germanic law on the Old Russian law and substantiated its originality. The stages of committing a crime and their role in choosing a certain penalty are discussed in the following documents: the Russian Truth, the Council Code of 1649, the Military Articles of 1715, the Code of Civil Laws of the Russian Empire of 1832, the Criminal and Correctional Punishments Code of 1845, the Charter of Punishments Imposed by Magistrates of 1864, the Criminal Code of 1903 and the Criminal Code of the RSFSR of 1926.

Features of legal regulation of the institute inquiry in the legislation of Ukraine and foreign countries

Features of legal regulation of the institute inquiry in the legislation of Ukraine and foreign countries

PLEA DEALS OR PRE-TRIAL COOPERATION AGREEMENTS: A COMPARATIVE VIEW OF JAPAN’S NEW INSTITUTION OF CRIMINAL PROCEDURE LAW

The article examines the new institute of criminal procedure law in Japan, which provides for the possibility of reaching a certain agreement between the defense and the prosecution. Conciliation procedures have become a fairly common legislative practice in many States, which should be considered as a global trend.

Институт самозащиты в публичном и частном правовом пространстве. Рецензия на монографию Е.В. Лукки, А.В. Шульги «Необходимая оборона при посягательствах на членов семьи: уголовно-правовые и криминологические аспекты» (М.: «Юрлитинформ», 2021. 176 с.)

The necessary defense is an inalienable right of every person, consisting in the protection of life and health, rights and legitimate interests belonging both to himself and to third parties. It is necessary to agree with the authors of the monograph that this form of self-defense is "one of the oldest institutions of criminal law, which since ancient times is based mainly on the instinct of self-preservation of a person living in society, and the desire to protect themselves from the surrounding dangers of domestic and social nature" (p. 7). The" merits " of the legal institution under consideration should also include the fact that it has a really effective deterrent potential against crime, since the prospect of receiving a tough rebuff from the defender has a much greater impact on the attacker than the probability of being in the hands of justice. At the same time, a qualified legal assessment of all aspects of the incident determines the distribution of the "victim" and "accused" statuses, which are sometimes repeatedly "exchanged" by participants in numerous conflicts during the judicial and investigative proceedings. An equally problematic aspect is the possibility of provoking an attack with the subsequent imitation of the state of the necessary defense from hooligan, selfish or other deviant motives. Accordingly, the correct legal assessment of the application of this form of self-defense in practice is a highly significant element of law enforcement. This is what determines the value of the institute of legal self-defense as an object of scientific research.

Characteristics and Functional Purpose of the System of Criminal Law Rules Providing Protection of Military Law and Order

Based on the provisions of the general theory of systems and the theory of law, the author of the paper, taking into account philosophical objective attitudes, argues that, despite the fact that the law-maker refers legal norms ensuring protection of the military law and order to differnt institutions of criminal law, they must be regarded as a system that is a holistic, relatively independent, component institution of criminal law. The author argues that this system in its type belongs to open systems, since even in the conditions of partial determination in the structure of the criminal law it is able to react to the external conditions through available points of contact. Given various challenges and threats to the military law and order at the beginning, this system, having transformed them, allows in the end to provide prevention of military crime and criminal law protection of the military law and order. It is stated that this system is based on a variety of external and internal relations between its elements and larger formations. Among such connections the author enumerates genetic relations (spawn relations), coordination, subordination and structural intra-system connections that together support homeostasis of the systems of military-criminal norms, i.e. ensure its existence and functioning. The structure of this system depends on its subject and functional purpose, namely, providing criminal legal protection of military law and order in peacetime and wartime. The analysis of the integrative properties of this system, its typological characteristics and subject and functional purpose makes it possible to conclude that the system of military and criminal law rules constitute a sub-brunch of criminal law.

Legal Status of Persons Serving Sentences in the event of Health Emergency

The paper discusses the preventive measures carried out in the penitentiary institutions of foreign countries, preventing the penetration and spread of coronavirus infection. Persons serving sentences in places of detention are at increased risk of infection in the event of an outbreak of the disease. Their situation requires separate consideration in planning and responding to crises. Measures to ensure social distancing are implemented through a special legal regime, the introduction of which limits the subjective rights of convicts. The introduced legal restrictions in some states provoked the emergence of criminal emergencies, which required the optimization of criminal and penal legal relations. Due to the emergency in the healthcare sector, it seems possible to use such institutions of criminal law as release from serving a sentence, deferment from serving a sentence, replacing the unserved part of a sentence with a milder type of punishment as an exceptional measure, and developing alternative ways to maintain socially useful ties. These methods include: increasing the duration of calls in correctional facilities, conducting visits through video conferencing, organizing a prompt exchange of information on the health status of relatives and convicts using a hotline, and using secure mobile devices.