Criminal Law Theory Research Articles

Reasonable Risk and the Exercise of Professional Functions as Circumstances Precluding the Criminality of an Act: Characteristics of Similarities and Differences, Features of Interaction

The article presents a comparative characteristic of the circumstance fixed in Article 41 of the Criminal Code of the Russian Federation, excluding the criminality of the act: “reasonable risk”, and the circumstance existing in the theory of criminal law, excluding the criminality of the act: “causing harm in the exercise of professional functions”. The specifics of their interaction in the conditions of military service are also considered. The conclusion is made about the close relationship of these circumstances, which can be characterized as intersecting Euler circles.

The helplessness of the victim: theoretical views and law enforcement practice

The subject of the studyis the helplessness of the victim as a criminal legal category. The purpose of the research is to confirm the hypothesis about the negative impact of the evaluative nature of the sign "helpless state of the victim" on the unity of law practice. The historical and legal method allows us to consider doctrinal views and case law of applying norms containing the helpless state of the victim in different historic periods; using the comparative legal method, differences in the interpretation of the victim's helpless in different criminal laws are revealed; the formal legal method allows us to explore the technique of legislative recognition of the helpless state of the victim as constructive, qualifying signs and aggravating circumstances; logical methods contribute to the gener- alization of the results of the analysis of case law.The main results.It is established that the existing definitions of the helpless state of the victim, as a rule, are based on the objective inability of the person to actively resist. Based on the various reasons that cause the helpless of the victim, the following types are distinguished: physical and mental. Two categories of persons are recognized as physically helpless: those who are unable to resist due to internal factors (state of health) and external (related persons). The list of diseases that form physical helplessness is open. However, the court, as a rule, refers to disability or difficulties in movement. It is important when imputing physical helplessness to establish the fact that the victim was in such a state before the start of the committing of the criminal intent. Otherwise, it forms the objective side of the crime. The court, when determining mental helplessness, mainly focuses on the expert opinion. A controversial issue in the doctrine of criminal law remains the attribution of unconsciousness to helpless state in crimes against life and health. The Court takes the position of not attributing. In this case, it seems illogical to recognize a bound person as helpless.In order to maintain the unity of practice, a critical analysis of the approaches existing in the theory of criminal law, the grounds for strengthening criminal responsibility for a crime against a helpless person, has been carried out. These include: method, protection of socially poorly protected groups, peculiar ferocity, provoking factor, cynicism. Taking into account the specifics of crimes against sexual freedom and sexual inviolability and against life and health, it seems more logical to formulate different grounds for them: as a way of committing a crime and as protection of socially poorly protected groups, respectively.Conclusions.The hypothesis about the lack of unity in doctrine and law enforcement practice regarding the content of the "helpless state" sign of the victim was confirmed. It should be noted that the existing discussion is largely due to the ambiguous position of the Russian Supreme Court. In order to resolve the existing contradictions, it is proposed to determine the fundamental point: the basis for strengthening criminal responsibility.

Peranan Saksi Mahkota Dalam Perkara Tindak Pidana Kasus Pembunuhan Berencana Brigadir Joshua Dikaitkan Dengan Asas Non Self Incrimination

Abstract-The purpose of this study was to analyze the role of the crown witness in the premeditated murder case of Brigadier Joshua associated with the principle of non-self-incrimination and the obstacles to using a crown witness in the premeditated murder case of Brigadier Joshua associated with the principle of non-self-incrimination. This writing research method uses a normative juridical method with three approaches, namely the statutory approach (statute approach), conceptual approach (conceptual approach), and case approach (case approach). The results of the research on the role of the crown witness in the premeditated murder case of Brigadier Joshua were linked to the principle of non-self-incrimination, there were five defendants who were used as crown witnesses against the other defendants namely Ferdy Sambo, Putri Candrawathi, Bripka Ricky Rizal, Strong Ma'ruf and Bharada E However, there were two defendants who refused to be the crown witness for the other defendant, namely Ferdy Sambo who refused to be a witness for Putri Candrawathi, and vice versa Putri Candrawathi refused to be a witness for Ferdy Sambo. With this in mind, there are obstacles that come from obstacles to the defendant, obstacles to evidence, and obstacles to the trial judge. Based on this study, the use of crown witnesses in court proceedings is common. Aims to open the veil of crime from the defendant who was used as a witness. However, the use of crown witnesses must still pay attention to the human rights of the accused. In criminal law theory, this provision is referred to as the principle of non-self-incrimination, namely the defendant has the right not to provide information that incriminates himself (privilege against self-incrimination), which in practice the attitude of silence and not admitting to the accused is used as an excuse or circumstance that can be aggravating for punishing the accused.

CONCEPTS OF CAUSATION IN CRIMINAL LAW: PROBLEMS, ANALYSIS AND SOLUTIONS

The article widely uses logical, inductive, deductive, systematic, logical-legal, comparative-legal research methods. In particular, it was noted that the issue of causation in the institutions of general and special parts of criminal law is very complicated and there are many problems with it. In the theory of criminal law, scientists put forward eleven theories of causation in their scientific works, and the content of the most important of them is analyzed in this article, as well as specific shortcomings of theories of causation are recognized. The scientific views and researches of scientists regarding the theories of causation in criminal law, the similarities and differences between them are described in detail. At the same time, two of the theories of causation in foreign criminal law are widely used: the theory of equivalence and adequacy, and among them: the first contains the necessary conditions ("conditio sine qua non" - "there is no condition without a necessary condition..."), and the second is adequate( exactly the same, equal, suitable) are stated to represent conditions. Also, the legal nature of eleven theories of causation in the theory of criminal law, their specific rules are comparatively analyzed, their problematic aspects are identified and sequentially described. This article focuses on eleven theories of causation in criminal law theory and provides an instrumental and comparative analysis of their intertwined provisions. Also, out of the eleven theories of causation, the theory of direct causation was found to be the most widely used. At the same time, the doctrine of criminal law and existing scientific research were analyzed, and reasonable theoretical recommendations were developed in this regard.

ПРОБЛЕМИ ВСТАНОВЛЕННЯ ВИНИ У ВИПАДКУ ВИЗНАННЯ ОСОБИ НЕОСУДНОЇ

In the theory of criminal law, the issue of the relationship between the mental phenomena of sanity and guilt is not studied comprehensively. Most scholars who study sanity issues limit themselves to the assertion that sanity is closely related to guilt. At the same time, the specifical features of this relationship are practically not investigated. The scholars, as a rule, limit themselves to pointing out that sanity is a prerequisite for establishing guilt. According to this approach, it is considered that the solution of the issue of guilt can take place only after the previous positive solution of the issue of the sanity of the person. This position is questioned in the article. After all, from a philological point of view, a phenomenon that precedes another in time and exists separately from it can be called a prerequisite. Consequently, if sanity is considered a prerequisite for guilt, then the conclusion will be obvious that, at least, sanity and guilt as certain mental processes (special mental phenomena) do not coincide in terms of their existence. According to such an approach, sanity shall precede guilt by the time of its existence, it shall be separated from it by a time interval. At the same time, the wrongness of such a conclusion is obvious. After all, sanity and guilt as certain mental phenomena coincide in time – their existence is connected only with the time of the commission of a criminal offense. There can be no question of sanity or guilt of a person outside the time of committing a criminal offense. There is no sanity of a person who has not committed a criminal offense, there is no guilt of a person outside of a specific criminal offense. With all the independence of these phenomena for solving the issue of criminal responsibility of a person, their separation from each other can only be conditional. Just as it is conditional to distinguish such separate elements of corpus delicti as a subject and a subjective side. After all, as already indicated, the subject itself is the bearer of the subjective side, and therefore there can be no question of mechanical separation of the subjective side from the subject. The fact is that both sanity and guilt indicate a person`s mental attitude towards the same act and its consequences, if these consequences have criminal legal significance, and at the same time – the moment of committing a socially dangerous act. It is substantiated that from the point of view of the dialectical relationship between the phenomena of sanity and guilt, sanity can be called «psychic material», different forms of combination of which form different types of guilt, respectively. The relationship between these phenomena can be called the relationship of form and content, where sanity is the content, and guilt is the form. The issue of necessity for separate study and establishment of a mental attitude to a socially dangerous act and its consequences by a person who is recognized to be insane. It should be noted that such a question is not raised in the scientific literature at all, and the problem is not investigated. On the one hand, such presentation of the question is strange, because if an insane person is not the subject of a criminal offense and will not be subject to criminal liability under any conditions for committing a socially dangerous act, then why should we separately investigate mental processes in which no single kind of guilt can be established? Indeed, those pathological mental processes that take place in the psyche of an insane person have nothing to do with those intellectual and volitional features, with the help of which the concepts of certain kinds of guilt are defined. And formally, under no circumstances can the mental attitude of insane person towards the act he/she commits and its consequences be called guilt. At the same time, the position according to which it is impossible to ignore the peculiarities of the mental attitude of an insane person towards the act he/she commits and its consequences is substantiated in the article. After all, otherwise it is impossible to qualify the actions of such a person correctly, as well as to resolve the issue of applying a specific kind of medical coercive measure to him. It is substantiated that in such cases it is necessary to use a legal fiction that shall allow the definition of certain kinds of guilt to be applied to the mental processes that occur during the commission of a socially dangerous act by an insane person. The case law regarding this problem is analyzed.

The Concept of Crimes against Digital Data Security

In the theory of criminal law, there are many approaches to understanding the concept and content of computer crimes. Some authors adhere to a strictly normative approach, using the term «crimes in the field of computer information» and referring to this category of acts provided for by Chapter 28 of the Criminal Code of the Russian Federation. Other authors operate with concepts «computer crimes,» «information crimes,» «cybercrimes,» «crimes in the field of high technologies,» «Internet crimes,» etc. The paper also presents an analysis of foreign regulations, demonstrating a significant difference in the directions of regulating criminal liability for computer crimes. The lack of a uniform approach creates obstacles to effective scientific and legislative activity. The author attempts to develop the most comprehensive and accurate definition covering crimes related to the use of computer technology. The author proves that the term «computer» is outdated and requires replacement, as the term «electronic computing machine» previously used in the criminal law. Recent changes in various branches of law are characterized by the use of the adjective «digital,» which is applicable to criminal law. Starting from the concept of digital information that was earlier developed by legal scholars the author proposes a new definition covering crimes related to the use of computer technology. When forming a definition, the author, first, takes into account the object of encroachment, and as additional features — tools, means or method of committing an act. According to the results of the study, the author gives the concept of crimes against the security of digital information — these are socially dangerous acts that cause harm or put in danger of harming the state of security of the processes of searching, collecting, storing, processing, providing, distributing digital information committed using information and telecommunications technologies or violating the rules of their use.

Criminal-legal significance of minority of the injured as an aggravating circumstance

The article considers the criminal law significance of signs of infancy and minority of the victim as an aggravating circumstance in the criminal legislation of the Russian Federation. Thus, the subject of research is the social relations that characterize the named circumstance. As part of the work, the author studies various doctrinal approaches to the definition of the concepts of "juvenile" and "minor" in the context of the issues under consideration. In addition, the study touches upon the law enforcement problems of taking into account the infancy and minority of the victim when qualifying a socially dangerous act. The author notes that the inclusion of the minority of the victim among the circumstances under consideration is dictated by the special danger of the person committing such an attack, his inhumanity, the baseness of the motives that prompt him to commit a crime. By analyzing the legal framework, statistical data and provisions of the theory of criminal law, controversial and problematic aspects of the application of the norms of the current criminal legislation in the context of taking into account the minor age of the victim as an aggravating circumstance are revealed. The paper notes that these signs affect the nature and degree of public danger of a crime, differentiating responsibility, being important for qualifying a criminal act and imposing a just punishment. The author proposes recommendations for changing the current criminal law in the relevant part. The author notes that the proposed changes will make it possible to improve the process of individualization of the punishment imposed on the guilty, and will also allow an objective assessment of the degree of public danger of the deed when the court decides the sentence.

Darryl Robinson, Justice in Extreme Cases. Criminal law Theory Meets International Criminal Law

Justice in Extreme Cases is a book like not many others. There is a profound interplay between notions of international criminal law (ICL), legal theory and philosophy in this volume, which takes the reader to a higher level of reflection. For this reason, one may want to challenge him- or herself with this reading. Robinson argues that the encounter between criminal law theory and ICL can be illuminating: the former can challenge the latter, while the newer ICL issues and problems can also serve as a challenge to and improve criminal law theory. In this respect, the author advocates for a more deontic reasoning in approaching ICL, which he defines as ‘normative reasoning that focuses on our duties and obligations to others’, as opposed to a more classic ‘precedential or teleological reasoning’.1 In other words, Robinson supports a more reasoning- and purpose-based approach to ICL — which takes into account the subjects it affects, including accused persons — as opposed to a mere mechanical development of the field and replication of domestic law principles and theory into ICL. This approach is omnipresent in all three main parts of the book.

Changing the Category of Crime by the Court: Law, Theory, Practice

The article is devoted to the criminal law characterization of the change by the court of the category of crime to a less serious one. The criminal law norm provided for by Part 6 of Art. 15 of the Criminal Code of the Russian Federation, is subjected to dogmatic analysis based on the provisions of the theory of criminal law and judicial practice. The content of the conditions and grounds for changing the category of crime as a tool for the individualization of criminal liability is revealed. The essence of changing the category of a crime by the court is determined, which consists in the fact that the norm is designed to eliminate the contradiction between the need to apply the criminal legal consequences of a less serious crime to the convicted person due to the fact that the punishment imposed on him, reflecting a significantly lower degree of public danger of the deed, corresponds to the category of a less serious crime, and the impossibility to do this for formal reasons, due to the fact that the maximum penalty for a crime committed by the criminal law categorizes it as more serious. In the context of the impossibility of changing the category of crime in a criminal case of a crime of minor gravity in order to assess the actual circumstances of the deed, indicating a significantly lower degree of its public danger, it is recommended to discuss the application of the criminal law norm on the insignificance of the act (part 2 of article 14 of the Criminal Code of the Russian Federation). When passing a sentence, the court is obliged to consider the possibility of changing the category of crime to a less serious one in the presence of those provided for in Part 6 of Art. 15 of the Criminal Code of the Russian Federation of formal conditions, however, the court has the right to change the category of a crime on the basis of an assessment that the degree of social danger of a crime, taking into account the actual circumstances of its commission, has been significantly reduced. A change in the category of a crime cannot affect the application of criminal law norms that determine the criminality of an act (qualification), as well as regulate the rules for sentencing separately for each crime committed. The practice of a court decision to change the category of a crime when issuing a decision to terminate a criminal case or criminal prosecution on non-rehabilitating grounds does not correspond to the procedural order of application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation.

Exemption from criminal liability in connection with compensation for damage (article 76<sup>1</sup> of the Criminal Code)

Subject of research: the norms of Russian criminal legislation regulating exemption from criminal liability in connection with compensation for damages, materials of judicial practice, the work of specialists devoted to the topic of the study.
 Purpose of research: to develop scientifically sound proposals for improving the criminal law in terms of determining the types of exemption from criminal liability.
 Methods and objects of research: the research is based on the dialectical method of cognition, the formal legal method, as well as methods of analysis, synthesis, induction and deduction. The object of the study is social relations arising in connection with the exemption from criminal liability on the basis of Article 761 of the Criminal Code.
 Main results of research: author comes to the conclusion that Article 761 of the Criminal Code is built in violation of the rules of legislative technique, does not have a sign of consistency and each part of it (including the name) requires serious adjustments, which calls into question the very fact of its existence, proposes to exclude it from the criminal law, which will remove a number of disagreements in the theory of criminal law, which will remove a number of disagreements in the theory of criminal law, stabilizes the Criminal Code from rhe point of view of consistency, eliminating the rauncancy of legal regulation.

2022년 형사소송법 중요 판례 평석

In 2022, there were numerous Supreme Court rulings in the field of criminal procedure law. Among them, eleven important judgments with substantial meanings related to criminal practice, theory, and guarantee of basic rights of the people were selected to introduce the issues and to give a brief review. The main judgments introduced in the paper include the following; ① the court-appointed absentee property manager is a legal representative with the right to file a complaint; ② the arrest of flagrant offender requirement for 'necessity of arrest' and its criteria; ③ even when the investigative agency does not notify foreigners of consular notification without delay to make the arrest and detention procedure illegal, the principle of exclusion of illegal evidence will not be applied as an exception; ④ the meaning of information storage media belonging to the suspect who is entitled to participate in the seizure and search procedure as much as those who submit the evidence voluntarily; ⑤ if electronic information stored in a remote server can be confiscated or not when the warrant states only ‘electronic information stored in information processing devices such as computers’; ⑥ judgment on the obligation to acknowledge reduced facts among the criminal facts charged; ⑦ judgment on whether the statements made by video recordings in violation of methods and procedures can be accepted in accordance with Article 312, Paragraph 4 of the Criminal Procedure Act; ⑧ judgment on unconstitutionality of the special clause on the admissibility of evidence concerning the testimony of sexual violence victims under 19 years old in the video; ⑨ if the defense counsel’s cross-examination and witness’ statements can be used as evidence when the witness (victim) does not appear after only half of the witness interrogation without notifying his or her whereabouts; ⑩ judgement on whether the direct appeal to supreme court by the accused (which is not recognized by the court according to Article 373 of the criminal procedure act) can be recognized as an appeal when the prosecutor appeals to higher court making the case concur; ⑪ if the district court sentences the defendant to more than 10 years in prison or imprisonment, whether the prosecutor can appeal on the grounds that the sentence is light.
 Through active criticism of the above rulings and discussions, many developments are expected in the field of criminal procedure law case and theory this year.

Too Objective for Culpability?

To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because it requires getting clearer about what wrongness and culpability are and what roles they play on a legal moralist picture of the criminal law. Here, I argue that Walen’s objection is mistaken. Once we get clearer on what distinguishes wrongness and culpability, it becomes clear that my account is best seen as a theory of culpability. This is so even though it calculates degrees of culpability in a more objective way than other insufficient regard views. Besides just defending my account from Walen’s objection, this paper aims to make a positive contribution by developing a more sophisticated version of the Manifestation Account I proposed earlier. To do this, I focus on the main area of criminal law doctrine where culpability comes apart from wrongness – namely, excuse cases. My earlier Manifestation Account is implausible – or at least limited – because it has nothing distinctive to say about how to determine the culpability of excused misconduct. Accordingly, the theory would be, if not outright false, at best incompatible with the orthodox view in criminal law theory, which takes excuses to accept wrongdoing but deny culpability. To solve this problem and enhance the Manifestation Account’s explanatory value, I show how to extend the theory to account for the culpability of wrongs where a putatively excusing condition is in play. This not only fills a gap in the Manifestation Account but has the further benefit of providing a unified reasons-based account of the main categories of misconduct in the criminal law, which shows what separates criminal wrongness from culpability both in justification cases and excuse cases. The hope is that this effort will shed light on the distinct roles of wrongness and culpability in legal moralist theories of the criminal law and provide a better understanding of degrees of culpability for criminal wrongs – not only when justifications are at issue, but also when excuses are involved.

The criminal law's person By C.Lernestedt, M.Matravers (Eds.), Oxford: Hart. 2022. pp. 216. £85.00 (hbk). ISBN: 9781509923748

The criminal law's person By C.Lernestedt, M.Matravers (Eds.), Oxford: Hart. 2022. pp. 216. £85.00 (hbk). ISBN: 9781509923748

Manfaat Pemidanaan Dalam Penanggulangan Tindak Pidana Narkotika

Introduction: The criminalization of narcotics offenders is often subject to heavy penalties, but for potential perpetrators there is no deterrent effect, even recidivist or repeat offenders never feel deterred. Therefore, it is necessary to find alternative solutions to narcotics abuse more effectively so that it can have a deterrent effect on both the perpetrators and potential perpetrators.Purposes of the Research: The purpose of this study is to analyze and explain the meaning and purpose of imposing criminal sanctions against narcotics abuse, so that the perpetrators or potential perpetrators become deterrent, as well as to discuss the purpose of imposing heavy penalties for perpetrators of drug abuse in terms of the theories of the purpose of punishment that have been adopted in the development of criminal law. Methods of the Research: The method used in this study is a normative juridical method with a statutory approach, a conceptual approach and a case approach. The legal materials used are library law materials. Thus, the legal materials studied and analyzed in normative legal research consist of primary legal materials, such as legislation, secondary legal materials in the form of legal literature, consisting of books, scientific journals, legal documents and so on, as well as legal materials. tertiary in the form of legal dictionaries, encyclopedias and so on.Results of the Research: Based on the results of the study, it is shown that the imposition of serious crimes against narcotics traffickers is not always able to solve the problem of lawbreakers, both seen from the theories of classical criminal law, modern criminal law and new classical criminal law. This is reasonable because the prevention of crime lies not only in the model or duration of the punishment given and served later, but on the criminal system adopted in a country that it adheres to. The problem of whether or not a person is deterred is not determined by how much sanctions are given, because the provision of sanctions and whether or not a person is deterred depends on the attitude of people and society towards the crime he feels.

IJTIMOIY XAVFLI OQIBAT TUSHUNCHASI, TABIATI VA TUZILISHI: NAZARIYA, QONUN VA AMALIYOT

Logical, systematic, logical-legal, comparative-legal methods of research are widely used in this article. In particular, first of all, the concept of socially dangerous consequences and the stages of its formation are described in detail. Also, the socially dangerous consequence is generally an optional sign of the objective side of the crime, it is recognized as a necessary sign in material crimes, and the opinions and views expressed by scientists in the theory of criminal law about it are highlighted, and then the criminal law in the norm, the expression of the socially dangerous consequences and their specific characteristics are described in sequence by the legislator. At the same time, in the development of the concept of socially dangerous consequence, which is a sign of the objective side of the existing criminal law, the specific importance of the signs of the objective side of the crime is described. In this article, based on the deduction method of research, the nature, structure and forms of the socially dangerous consequence, which is a sign of the objective side of the crime structure, have been studied, and the theoretical and scientific views on it in the criminal law have been reflected. Also, in this article, the main focus is on the concept, nature, forms and structure of the socially dangerous consequence, which is a sign of the objective side of the criminal structure, as well as the specific criminal-legal significance of the criminal consequence and related theoretical and practical problems. At the same time, the doctrine of criminal law and existing scientific research were analyzed, and reasonable theoretical proposals and recommendations were developed in this regard.

Information security against the threats of transnational organized crime

The article is devoted to the study of information security against the threats of transnational organized crime. Organized crime is a potential and major threat to the national security of our country. The relevance of the research topic is determined by the fact that transnational organized crime is not only a potential, but also a real threat to national security, state sovereignty, and the provision of human and citizen rights and freedoms. Transnational crime is a phenomenon that is not only not limited to the borders of one state, but also affects the global security of humanity.
 Transnational organized crime is a significant problem for the development of Ukraine as a democratic, social and legal state with the irreversibility of Ukraine's European and Euro-Atlantic course. At the same time, the issue of the commission of criminal offenses by organized crime is one of the most complex and problematic both in the theory of criminal law and in judicial and investigative practice.
 Attention is drawn to the fact that since the full-scale invasion of the Russian Federation, the issue of ensuring information security, as a component of national security, has acquired a new meaning, and therefore requires research and resolution.
 The article focuses on issues of legislative consolidation of the concepts «information security», «national security», «transnational organized security». The main provisions of the normative legal acts establishing these concepts were analyzed, as well as threats to national security and problems of organized crime were determined.
 The United Nations Convention against Transnational Organized Crime, November 15, 2000, approved by resolution 55/25 of the General Assembly regarding the consolidation of the concept of «transnational organized crime», «crime of a transnational nature» was analyzed.

Coping with Moral Dilemmas in German Criminal Law Theory and Justice: Classical Cases and Modern Variants

Dilemma scenarios have always been among the most common problems of moral philosophy and criminal law theory. One only has to contemplate the Plank of Carneades, the classic thought experiment whereby two shipwrecked people’s only hope of rescue is a floating board that can only be occupied by one person. Other scenarios are Welzel’s switchman case and the well-known Trolley Problem. In most of the debated cases the death of one or more people is absolutely unavoidable. The protagonists do not cause the situation but are fated to come into conflict. The focus of this article is on one recent and one future variant. First, the prioritization of medical aid (also known as “triage”) is the subject of intense debate, because the COVID-19 pandemic posed a permanent risk of a temporary collapse in the health system in several countries. Situations had arisen whereby some patients can no longer be treated owing to lack of capacity. It can be asked whether a decision to treat may be based on which patients have a better chance of survival, whether reckless previous behaviour may play a role, and whether a treatment, once started, may be discontinued in favour of another. Second, dilemma scenarios are also one of the last remaining (largely unresolved) legal difficulties of autonomous vehicles. Never before has a machine been given the power to determine the life or death of human beings. Even though the automotive industry promises that such situations will hardly ever occur, the problem could prove to be a tangible obstacle to acceptance and innovation. The article offers solutions for those distinct scenarios, but it is also intended to demonstrate the underlying legal concepts of German law: namely, the tripartite analysis of criminal law and the idea of human dignity as a fundamental principle of the German constitution.

Cruelty against Leniency: The Case of Imperial Zoroastrian Criminal Law

The article examines the impact of Zoroastrianism on criminal law and legal theory during the reign of the Sasanian dynasty (224–651 C.E) in late Antique Persia. This was the historic period when Zoroastrianism was also the ideology of the Iranian state, which granted the Zoroastrian church extraordinary power and influence, a unique situation which is termed by the author as ‘imperial Zoroastrianism’. The first part of the paper examines how imperial Zoroastrianism evolved from previous understanding of religion and law. The second part of the paper scrutinises the Zoroastrian understanding of wrong in the light of eschatology and cosmology, and the ethical principles that follow from this very particular world view. Next, an individual section is devoted to the criminal theory of Zoroastrianism, which regards criminal punishment not as a punishment but as a means to save the soul of the offender from sufferings in Hell. With such an underlying principle in mind, the text looks for examples of cruelty and leniency in substantive criminal law and criminal procedure. This main body of the article examines contemporary legal sources and apocalyptic works. Finally, a comparison of Hindu and Islamic criminal legal theory follows the description of the Zoroastrian criminal law, highlighting astonishing similarities. Considering the results of both the analytic and the comparative methods, the author comes to the conclusion that it is not religion in itself that suppresses crimes, but rather their eschatology and cosmology: religions that are based on divine justice are less lenient toward crimes and offenders than religions in which alternative concepts like divine grace or non-violence are also operative.

Justice before Expediency: Robust Intuitive Concern for Rights Protection in Criminalization Decisions

The notion that a false positive (false conviction) is worse than a false negative (false acquittal) is a deep-seated commitment in the theory of criminal law. Its most illustrious formulation, the so-called Blackstone’s ratio, affirms that “it is better that ten guilty persons escape than that one innocent suffer”. Are people’s evaluations of criminal statutes consitent with this tenet of the Western legal tradition? To answer this question, we conducted three experiments (total N = 2492) investigating how people reason about a particular class of offenses—proxy crimes—known to vary in their specificity and sensitivity in predicting actual crime. By manipulating the extent to which proxy crimes convict the innocent and acquit those guilty of a target offense, we uncovered evidence that attitudes toward proxy criminalization depend primarily on its propensity toward false positives, with false negatives exerting a substantially weaker effect. This tendency arose across multiple experimental conditions—whether we matched the rates of false positives and false negatives or their frequencies, whether information was presented visually or numerically, and whether decisions were made under time pressure or after a forced delay—and was unrelated to participants’ probability literacy or their professed views on the purpose of criminal punishment. Despite the observed inattentiveness to false negatives, when asked to justify their decisions, participants retrospectively supported their judgments by highlighting the proxy crime’s efficacy (or inefficacy) in combating crime. These results reveal a striking inconsistency: people favor criminal policies that protect the rights of the innocent, but report comparable concern for their expediency in fighting crime.

Административная преюдиция: подходы к регламентации уголовной ответственности на примере построения ст. 264.1 и ст. 314.1 УК РФ

The article discusses the features of the approach of the Russian legislator to the assessment of a rather debatable criminal law institution — administrative prejudice. His opposite assessments in the theory of criminal law, as well as the position of the Supreme Court of the Russian Federation, are analyzed. A detailed legal analysis of the elements of crimes constructed in Art. 264.1 and Art. 314.1 of the Criminal Code of the Russian Federation, and their author’s edition is proposed.