Interpretation Of Criminal Law Research Articles

Possibility of retroactive effect of judicial interpretation of criminal law in the context of its legal certainty

The article addresses the issue of the possibility of retroactive effect of the results of judicial interpretation of criminal law in the context of its legal certainty. It is stated that the effect of a law in time is a manifestation of legal certainty. Predictability of a criminal law does not mean that this law should be understood equally by everyone and be certain and predictable for everyone. Accordingly, courts may interpret criminal law, the result of which should be predictable for the addressee. Based on the case law of the European Court of Human Rights, and also taking into account the theory of “legitimate expectations”, which is widely used, in particular, by the Court of Justice of the European Union, and the activity­based approach to the study of legal phenomena, the author proves that the issue of retroactive effect should be resolved not only with regard to the criminal law itself, but also with regard to the results of judicial interpretation provided by the Supreme Court, which is objectified in the form of legal conclusions set out in the Supreme Court’s rulings, which are binding on all public authorities which apply in their activities a legal act containing the relevant rule of law, and the conclusions on the application of the rules of law set out in the Supreme Court’s rulings are taken into account by other courts when applying such rules of law. If the result of judicial interpretation interprets the criminal law provision that was applicable at the time of the criminal offense more «rigidly», it does not have retroactive effect. If such a result of judicial interpretation is more favorable for the person who committed the criminal offense compared to the interpretation that existed at the time of the criminal offense, then such a result has retroactive effect. The new result of a judicial interpretation of a criminal law provision may have retroactive effect if such interpretation was foreseeable for the addressee of the criminal law and did not violate his legitimate expectations or violate expectations that were not subject to protection for specific reasons.

Changes in the Interpretation of the Criminal Law by the Supreme Court of the Russian Federation: Factors, Consequences, Risks

Problem statement. The problems of the evolutionary interpretation of the criminal law in the scientific literature are practically not given attention. At the same time, the practice of significantly correcting the interpretative positions of the Supreme Court of the Russian Federation forces us to conceptualize this problem as an independent object of scientific analysis. Aims and objectives of the research. The purpose of the work is to develop the theory of interpretation of the criminal law by analyzing the factors influencing the change in the position of the highest court on the interpretation of the criminal law, as well as by investigating the mechanisms necessary to deter dynamic interpretation. Methods. The work is based primarily on the use of a documentary method of researching materials of judicial practice and a critical analysis of scientific literature. Results. Based on the study of the materials of the practice of the Constitutional Court of the Russian Federation, practice-forming documents of the Supreme Court of the Russian Federation, current judicial practice and scientific sources, the following are presented: (a) factors influencing the dynamics of the position of the Supreme Court of the Russian Federation on the interpretation of criminal law; (b) factors allowing to predict changes in the dynamics of the legal position; (c) risks arising in connection with changes in acts of interpretation. Brief conclusions. The dynamics of the legal interpretation positions of the Supreme Court of the Russian Federation is influenced by at least four groups of factors: the constitutional and legal meaning of criminal law regulations identified by the Constitutional Court of the Russian Federation; changes in the socio-political course implemented in the country; the needs of law enforcement practice changing under the influence of new criminal challenges; the development of scientific ideas about the content of criminal law. These factors, acting individually or together, may determine a change in the approach of the highest court to understanding the criminal law. However, such changes, no matter how necessary they are, must have an important quality of predictability so that the dynamics of the interpretation of the law does not undermine the beginning of stability of criminal law regulation. The risks of instability of legal regulation when changing the interpretation of the law must be overcome by a reliable monitoring and forecas­ting system so that these changes contribute to the development of law and the effective achievement of the objectives of the criminal law.

Interpretation of Law: History of Formation (with an Emphasis on Criminal Law Interpretation)

Interpretation of Law: History of Formation (with an Emphasis on Criminal Law Interpretation)

About the determinants of sexual crimes and their consideration in criminal proceedings

The article is devoted to the problem of determining the nature of sexual crimes and their determinants, which should be taken into account when making decisions in criminal proceedings. It is noted that the change in 2018 in Ukraine of the criminal law interpretation of rape and other sexual crimes in accordance with the paradigm of the countries of the European Union made it necessary to revise a number of previously formulated theoretical provisions in the field of legal sciences of the criminal law cycle. The article emphasizes that the renewal of criminal legislation took place as a result of the influence of the processes of increasing the degree of protection of women from violence that took place in other countries. It is noted that these processes were a manifestation of the tendency to strengthen the protection of women’s rights against domestic violence, in particular in intimate relationships. The novelty was the normative consolidation of the provision that a key sign of sexual violence is the absence of a clearly expressed voluntary consent of a woman to carry out actions of a sexual nature against her. Such consent must be the result of a person’s free will, taking into account the accompanying circumstances during criminal proceedings.
 During the investigation of sexual crimes, a number of factors are subject to investigation, a large part of which are determinants of the commission of sexual violence. They touch on the psychophysiological and sociological aspects of committing sexual crimes. It is noted that the psychophysiological aspect of committing sexual crimes is that their basis is human sexuality, which is an innate need and function of the human body at the level of instinct. The sociological aspect of sexual crimes consists in going beyond the norm of modern sexual behavior, which was historically formed in a certain society. When a sexual crime is committed, in particular rape, it is manifested in ignoring the absence of a clearly expressed voluntary consent of the victim to commit acts of a sexual nature against her (most often she is a woman). In connection with the study of this problem, the importance of a new scientific and practical direction of criminal law and forensic medicine, which was called criminal sexology, is emphasized. The need to take into account the provisions of criminal sexology, which highlight the interdisciplinary complex of the most significant problematic issues to be resolved in criminal proceedings regarding sexual crimes, is substantiated.

Value Judgments in Criminal Law Interpretation

Criminal law interpretation in China faces two primary challenges in terms of value judgments. Normative interpretations often fall into circular and inadequate reasoning, while judges, the key figures in applying interpretive principles, frequently lack the necessary value judgment engagement and proficiency. Traditional criminal law interpretation is ensnared in a subjective-objective dichotomy, resulting in a misalignment with the aim of “legitimate and rational” interpretation practices in China. To rectify this, a philosophical shift is required to allow intersubjective value judgments while maintaining subjectivity-objectivity as the prerequisite. Criminal law interpretation ensures the completeness of value judgments through a combination of specialized knowledge and public discourse. This involves the creation of systematic criteria for value judgments and adherence to legal principles. The former necessitates defining the internal and external standards of value judgments, formulating rules for the resolution of conflicting standards, and underlining the practical importance of criminalization under law, or “no crime or punishment without law” (the principle that only the law can define a crime and prescribe a penalty) and “Where no law applies, it is permissible to redefine a crime as non-criminal or minor” (decriminalization). The latter involves three perspectives: logical reasoning and theoretical arguments; positive and negative judgments; and formal and substantive rationality. Moreover, it should be approached from four dimensions: normative orientation, individual case promotion, reverse exclusion, and constitutional guidance.

Glosa krytyczna do wyroku Sądu Najwyższego z 3 lipca 2019 r., sygn. akt V KK 256/18

The commentary concerns two major threads leading to a critical assessment of the commented judgement of the Supreme Court - the role of subsidiarity principal in criminal law interpretation and the insignificance of "economic justification" of manager's actions to determine if those actions breached Article 296 of the Penal Code. Author shows considerations regarding the importance of subsidiarity of criminal law, both in the aspect of lawmaking and interpretation of law for the correct legal interpretation of Article 296 of Penal Code. Author criticises the level of importance of the "economic justification" of manager's actions which was given by the Supreme Court in the commented judgement. As a rule, the so called "economic justification" of manager's action is inappropriate to the assessment of the substantive components of crime. It is especially irrelevant to the assessment of the results of manager's action - potential infliction of substantial damage or large-scale damage.

Крупный и особо крупный размеры как конструктивные признаки

The article examines issues related to the definition of the value terms of large and especially large sizes as constructive signs of a crime under article 1713 of the Criminal Code of the Russian Federation. Conclusions are drawn that the studied signs are of no small importance for the qualification of a crime. The author notes that their determination in the process of qualification causes difficulties. This is due to the lack of normative regulation of the sequence of determining the value of the subject of the crime provided for by the above article. To resolve this problem, the author analyzed the mechanism for establishing the value of the subject of a crime in other categories of social relations that perform a protective function. Based on the results of the analysis, guided by the provisions of a systematic approach to the interpretation of criminal law, the author proposes a mechanism for determining the cost of illegally produced and circulating ethyl alcohol, alcoholic and alcohol-containing products.

The Problem of Throwing Objects off High Building from the Perspective of Criminal law Interpretation

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QUALIFICATION OF CRIMINAL OFFENSES: THE PROBLEM OF DEFINITION AND METHODOLOGICAL ASPECTS OF THE RESEARCH

The article is devoted to the study of the qualification of criminal offenses. It has been established that this concept is used in criminal and criminal procedural legislation, but there is no formal definition of it. In the science of criminal law, there are different approaches to understanding the concept of qualifications. Based on the analysis of these approaches, the definition of the qualification of criminal offenses has been formulated. According to the author, the qualification of criminal offenses is a process of knowledge and evaluation by the authorized subject of the factual features of a socially dangerous act, isolation of legally significant ones and establishing their compliance with the legal features of a particular corpus delicti of criminal offense, including its distinction from other criminal offenses and from acts that are not criminally illegal, as a result of which the conclusion on the criminal law norm to be applied is substantiated and documented. The main methodological aspects of the study of the qualification of criminal offenses, such as praxeological, epistemological, axiological, hermeneutical, logical, practical, are highlighted. From the point of view of praxeology, the qualification of criminal offenses is considered as a special kind of human, and in particular legal, activity. In the epistemological aspect, the qualification of criminal offenses is the cognitive activity of the law enforcer. In the axiological aspect in the process of qualification the assessment of factual signs and the committed act as a whole is carried out, and also in the presence of estimation concepts in criminal law their maintenance is defined. The hermeneutic aspect of the study of the qualification of criminal offenses is to study the understanding and interpretation of criminal law. The comparison of the factual features of the committed act and the features of the specific composition of the criminal offense should be carried out using the laws, forms and methods of logic. The practical aspect of the study of the qualification of criminal offenses covers the material and procedural problems of accuracy, correctness of qualification in terms of content and form. It is concluded that the study of these aspects contributes to a deeper understanding of the concept under study. The multidimensional approach to the qualification of criminal offenses contributes to the further comprehensive development of qualification rules and substantiation of proposals for improving the practice of applying the criminal law.

Understanding and application of crime of sabotaging production and operation in internet era

PurposeThe purpose of this study is to investigate the understanding and application of crime of sabotaging production and operation in internet era, and, at the same time, discuss the basic position for criminal law interpretation in cyberspace.Design/methodology/approachDoctrinal analysis and case study.FindingsAlong with the advent of the internet era, how to apply the traditional crime of sabotaging production and operation in virtual space has attracted people’s attention. The controversy caused by the conviction of malicious application of fake transactions is a typical example. The legal interest protected here includes not only the property value of the means of production itself, but also the expectation interest that can be obtained by normal production and operation activities. There is no reliable basis to believe that overlap of articles between special provision and general laws occurs in crime of sabotaging production and operation and crime of intentional damage of property. The production and operation activities carried out online can also be covered by crime of sabotaging production and operation, without doubt. Ejusdem Generis Rule should be fully respected, but crime of sabotaging production and operation has a dual structure of means behavior and purpose behavior, where the purpose behavior, sabotaging production and operation, is the key to the conviction. However, it is not necessarily premised on physical damage and violent characteristics. The understanding and application of traditional crimes should keep pace with the times in the internet era, and we should not stick to a completely rigid subjective interpretation.Originality/valueThis study demonstrates the possible application of crime of sabotaging production and operation in cyberspace, and clarifies many misunderstandings about this crime.

ІСТОРІЯ РОЗВИТКУ КРИМІНАЛЬНОГО ЗАКОНОДАВСТВА У СФЕРІ ПРОТИДІЇ БАНДИТИЗМУ

The criminal law does not disclose the meaning of the concept of gang, its interpretation is provided by case law, in particular, the decision of the Plenum of the Supreme Court of Ukraine «On the practice of criminal cases of crimes committed by stable criminal groups». In this regard, the question arises about the appropriateness of the use of this concept in the Criminal Code of Ukraine. The aim of the article is to substantiate the expediency of defining a gang in criminal law with the disclosure of the sign of armament of this stable criminal group. Realization of the set purpose provides the decision of a number of problems: 1) to carry out the historical and legal analysis of concept of a gang; 2) to investigate the objective and subjective signs of banditry; 3) analyze the practice of applying Art. 257 of the Criminal Code of Ukraine. Scientific novelty. The article considers the issues of defining the concept of gang in the Ukrainian criminal legislation of the XIX-XXI centuries. art., because it was at this time that the basic institutions of modern criminal law of Ukraine were formed. In conclusion, the article emphasizes that in order to prevent ambiguous interpretation of criminal law in the Criminal Code of Ukraine, it is advisable to avoid concepts, the interpretation of which is provided not by law but by case law. It would be appropriate to define the gang in the footnote to Art. 257 of the Criminal Code of Ukraine with the disclosure of the sign of armament of this stable criminal association.

Considering the constitutionality of South Africa’s anti-gang legislation in light of the principle of legality

The essence of the principle of legality is to constrain governmental, legislative and judicial power, and protect citizens from the arbitrary exercise of these powers. This is especially true in the context of the drafting and interpretation of criminal law. Criminal laws in particular must be drafted in a reasonably clear fashion to provide citizens with fair warning of criminal sanction. The courts must also interpret these laws strictly, so that citizens are not punished for conduct that did not fall within the scope of either a common law or statutory crime. This article examines whether certain definitions employed in the Prevention of Organised Crime Act 121 of 1998 do not offend the principle of legality as it employs dubiously wide definitions. Although widening the criminal net for, in particular, criminal gang activities, these definitions arguably do not provide fair warning to citizens to avoid criminal sanction and may also be at risk of overbroad judicial interpretation. The analysis will further take place in light of comparable foreign legislation and decisions.

Zasada nullum crimen sine lege jako źródło poszukiwania językowej granicy wykładni prawa karnego?

The principle of nullum crimen sine lege is nowadays recognized as the standard of the rule of law. This doctrine prohibits the use of analogies and extensive interpretation of legal provisions to the disadvantage of the perpetrator. The starting point of these considerations is that texts of criminal provisions vary in nature. Therefore a question should be asked about the nature of these prohibitions in relation to various provisions. A separate problem is to distinguish inference by analogy from legal interpretation. The presented considerations are aimed at answering the question whether the nullum crimen sine lege principle allows determining the linguistic limits for the interpretation of criminal law. The analyses are illustrated by examples from the field of criminal case law. The article aims to provide reflection on the acceptable limits of interpretation of criminal law, if such limits can be defined. The considerations end with general conclusions.

Children's human right to sexual health: age of consent

The Mexican criminal law system sanctions under the crime of statutory rape adult offenders who have sexual relations with minors below the age of consent in order to protect their legal right to a healthy psychosexual development. 27% of criminal codes of federal entities set the age of consent at 12 years old. It is claimed that the age of 12 is too low to make teenagers legally responsible for the free exercise of their sexuality due to the serious effects it can cause on their dignity and sexual health. The aim of this article is to make an interpretation of criminal law under the concept of guarantism, to argue based on the best interest of the minor, the State obligation of legislating to set in a homogenous way in the criminal codes of the country, the minimum age of consent at 15 years old.

刑事政策指引刑法解释 — 走向回应刑法的途径

刑事政策指引刑法解释 — 走向回应刑法的途径

Limits of Autonomy in Criminal Law

The article raises a question about the autonomy of criminal law. Various aspects of the doctrinal understanding of the limits of criminal law and its scope in relation to the positive branches of legislation are considered. The author in the context of the existence of the concept of autonomy (independence) of criminal law regulation questions the limits of judicial interpretation. In this context, antagonistic views on the limits of the mechanism of criminal law regulation are considered. Particular attention is given to the fundamental premise that the functional autonomy of criminal law generates not only a protective component, but also a regulatory function, and the law enforcement officer has the right to decide a particular case, based on concepts borrowed from other branches of law, but it can give them a different meaning and significance than the one they are endowed with in these positive (regulating specific social relations) sectors. The author comes to the conclusion that an autonomous interpretation of foreign industry features and concepts of regulatory legislation is scarcely credible. If a criminal law is to protect economic relations arising from the static and dynamic nature of objects of civil rights and their turnover from criminal encroachments, its subordination to the provisions of regulatory legislation is inevitable. The determinism here should be manifested precisely in accordance with the description of the signs of the crime to the provisions of regulatory norms. As a result, the autonomy of criminal law may create uncertainty about the content of the rule of law itself and allow for unlimited discretion in its enforcement. In this formulation of the issue, the autonomy of criminal law regulation is replaced by a very different approach — the autonomy of the judicial interpretation of criminal law. However, in this case there is a substitution of concepts, and the autonomy of criminal law is associated not so much with the regulatory function as with the law enforcement of criminal law.

Aportes de la bioética a la política criminal: La biojurídica como herramienta útil para la resolución de dilemas en el derecho penal

The present paper aims to deliver an initial approach regarding the usefulness of bioethics as an alternative that can be taken into account in the elaboration of criminal policy, considering also biojuridica as a tool for solving dilemmas in criminal law. Furthermore, relationships and strategic meeting points with bioethics, biolaw and biopolitics are proposed, which could help public officer’s decision-making in regard to the defense of fundamental freedoms, with the support of bioethical principles whose content is similar to that of human rights. The methodology used is propositive hermeneutic which, based on the review of some concepts belonging to the bioethical and penal literature, will propose biojuridica as a useful tool to expand the auxiliary creation criteria, update and interpretation of criminal law, in accordance to globalized reality.

Leniency programmesfor cartel: mature reforms

The problems of interpretation of criminal law and administrative law institutes of active repentance (“leniency programmes”) in relation to cartels are considered.The definition of the effectiveness of the institution of active repentance is given as the ability of this institution to achieve the goals stipulated by law (in the aggregate or in a particular combination): 1) termination of the committed offense (crime) (“surrender”),2) assistance in investigating the relevant administrative offense (crime), 3) compensation for the harm caused by his offense (crime), 4) refusal to commit such offenses (crimes) in the future.The condition of the quadunity of these goals is investigated. It is noted that among the main factors reducing the effectiveness of administrative law and criminal law institutions of active repentance (“leniency programmes”) in relation to a cartel is the legal inconsistency of these institutions.Proposals are being made to amend par. 3 of the Notes to Art. 178 of the Criminal Code of the Russian Federation and Note 1 to Art. 14.32 of the Code of the Russian Federation Code of Administrative Offenses iin order to bring together the relevant institutions of active repentance.The necessity of legislative consolidation of general procedural rules for the implementation of the person who participated in the conclusion of the cartel, the law granted him the right to active repentance is substantiated.

Delito de lavado de dinero en Chile y Argentina. Breve análisis de derecho comparado

The author investigates the regulations concerning money laundering in Chile and Argentina since its beginnings. He analyses the development and current law in both countries according to the doctrine in vogue and its relation with the organized crime and the extradition. He works with the questions of the legislative methodology and the problems of amplitude of the types of criminal offenses. The author concludes that, in spite of the different ways followed by the legislations of Chile and Argentina, the problems of amplitude are familiar to both. The solutions to these problems of amplitude doesn’t depend on adopting an imported legislative model but to make a restrictive interpretation of criminal law. Both the Chilean legislation and the Argentinian punish essentially the same crimes, except the negligent money laundering that is penalized in Chile and not penalized in Argentina.

Delito de lavado de dinero en Chile y Argentina. Breve análisis de derecho comparado

The author investigates the regulations concerning money laundering in Chile and Argentina since its beginnings. He analyses the development and current law in both countries according to the doctrine in vogue and its relation with the organized crime and the extradition. He works with the questions of the legislative methodology and the problems of amplitude of the types of criminal offenses. The author concludes that, in spite of the different ways followed by the legislations of Chile and Argentina, the problems of amplitude are familiar to both. The solutions to these problems of amplitude doesn’t depend on adopting an imported legislative model but to make a restrictive interpretation of criminal law. Both the Chilean legislation and the Argentinian punish essentially the same crimes, except the negligent money laundering that is penalized in Chile and not penalized in Argentina.