Criminal Regulation Research Articles

Civil law regulation and criminal enforcement of mandatory vaccination policies: A comparative aspect

One of the most important tasks of any state is to provide everyone, including the child, with the opportunity for a healthy and fulfilling life. Processes of immunisation through vaccination are considered most appropriate for the prevention of infectious diseases. The purpose of this study is to understand the legal regulation of immunisation of the population and to give it a legal assessment, to review the legal acts on vaccination in different countries of the world and to identify the legal tendencies of resolving conflicts in the field of vaccination on the basis of court decisions. As a result of the research the prospective directions of work of civil and criminal regulation of vaccination of children, regulation of the right to education for children who have not been vaccinated, the lawsuits, petitions and court decisions regarding the population response to vaccinations were analysed. The authors of the study conclude on the methods of introducing mandatory vaccination of children, the development of new criminal legislation to protect rights and freedoms.

In the name of public health: misoprostol and the new criminalization of abortion in Brazil.

This article explores the criminal regulation of misoprostol as a controlled drug in Brazil as a new form of abortion criminalization. A qualitative analysis of Brazilian case law shows how the courts use a public health rhetoric of unsafe abortion to criminalize the distribution of misoprostol in the informal sector. Rather than an invention of the local bench, this judicial rhetoric reflects global public health discourse and policy on unsafe abortion and the double life of misoprostol as both an essential medicine and a controlled drug. In contrast to previous studies, the article shows that abortion criminalization is not the cause, but rather the consequence of misoprostol’s double life. In the last section, it draws on an outlier judgment of the case law to chart a regulatory future for misoprostol and its supply in the informal sector as a site of harm reduction and safe abortion in public health policy.

Criminal Responsibility for Crimes in the Energy Sector

The article deals with the issues of criminal law regulation of social relations arising from violations of legislation in the field of fuel and energy sector. Within the framework of the indicated problematics domestic and foreign experience is studied, in the course of comparative analysis of legislative base the common features and distinctions in approaches to classification of corpus delicti in energy segment with a focus on illegal acts in the field of electric power, to definition of size and limits of criminal liability are revealed. The ways of improvement of the Russian criminal law are revealed. The study is devoted to the current conditions of implementation of the mechanism of criminal responsibility for energy crimes in the Russian Federation, Germany and the UK. The authors propose ways to improve the Russian criminal law in terms of criminal regulation of relations in the field of fuel and energy complex.

On the issue of interpreting particular constituent elements of cruelty to animals

The research object is social relations in the field of criminal-legal regulation of components of crime establishing liability for cruelty to animals (art. 245 of the Criminal Code of Russia). The research subject is Russia’s legislation establishing liability for cruelty to animals, materials of investigative and judicial practice, official statistics, and theoretical views of scholars on the problem of cruelty to animals. The research methodology is based on the general dialectical approach. The author also uses such methods as the logical method, formal-legal method, and teleological method. During the research, the author also uses general scientific and specific methods of scientific cognition. The scientific novelty of the research is determined by the fact that, based on a comprehensive system analysis of Russian legislation, it formulates theoretical provisions about the improvement and use of criminal regulations establishing responsibility for cruelty to animals. In particular, with account for the regulations of the Federal Law of December 27, 2018 No. 498 «On responsible attitude to animals and amending particular legal regulations of the Russian Federation», the author formulates the definition of the term «cruelty to animals» and proposals about particular issues of qualifying crimes considered in article 245 of the Criminal Code of Russia.

CONSIDERATIONS ON THE IMPORTANCE OF THE EUROPEAN CRIMINAL LEGAL REGULATIONS CONTAINED IN THE TREATY OF LISBON

The establishment of a common European space of the Member States from an economic and judicial point of view has been the desideratum of the European states. The openness created by the European space, namely the free movement of people, generates an enormous advantage for Europe's population, but can also lead to Member States being exposed to various forms of cross-border crime that go beyond their borders.Free movement within the U.E. it must be accompanied by the strengthening of Member States' cooperation in the field of criminal justice and policing in order to ensure a framework of security and safety for European citizens.European citizens have the right to move and live freely without fear of being exposed to various forms of crime. However, international crime in various forms: drug trafficking, trafficking in human beings, prostitution, pimping, theft, robbery, murder, terrorism is a worrying phenomenon for European citizens. The number of organized crime cases has increased, capital market offenses, illegal e-commerce activities as well as those related to the safety and physical and moral integrity of the person have increased significantly.The issue of ensuring European criminal justice has thus been raised over time. Adoption of unitary criminal measures in the legislation of European states, but also at EU level. it is considered an effective means of preventing international crime and punishing those guilty of committing it.We find in European documents criminal regulations at European level that define the common effort to reduce and limit international crime. In this article, I have focused on the latest fundamental European treaty: the Treaty of Lisbon, in which criminal law falling within the exclusive sphere of the Member States acquires European competences.

Krivična odgovornost pravnih lica u Letoniji - načelni uvidi, osobenosti i aktuelnosti

The path that the Latvian normative regulation in criminal law and the Latvian criminal law doctrine took to arrive at the possibility of turning against legal entities by criminal law measures was neither fast nor simple. The initial position was that regulation like this would be incompatible with the basic principles of Latvian criminal law since, historically, psychological understanding of guilt has been characteristic in the Latvian criminal law, guilt is identified with a person's mental attitude towards the criminal offence, and guilt also is one of the grounds for criminal liability. It was not clear how this understanding of guilt could be compatible with punishing such "legal fiction" as a legal person in the framework of criminal law. Ways, in which Latvia could adjust its legal regulation to various international normative documents that Latvia had acceded to, at the same time leaving the dominant basic institutions of the Latvian criminal law theory unaffected, were sought rather reluctantly. Discussions that lasted for years resulted in the inclusion into the Criminal Law coercive measures, existing outside the system of criminal penalties, applicable to legal persons, likewise, several criteria were defined as the grounds for applying these coercive measures to legal persons, the central of which was a criminal offence, committed by a natural person who was connected to the legal person, in the interests of the legal person or as the result of insufficient control by this legal person. Accordingly, criminal procedural regulation was created, which to a large extent equalled a legal person to an accused natural person in criminal proceedings. Although the criminal law and criminal law regulation, which provides for the possibility to apply criminal law coercive measures to legal persons in the framework of criminal proceedings has existed in Latvia for already 16 years, these criminal law instruments have started taking their place in the practice of applying law only in recent years, simultaneously also revealing deficiencies in the legal regulation, already now providing sufficient material for analysis to be used for improving these legal norms.

О СУЩНОСТНЫХ СВОЙСТВАХ ПРИГОВОРА

The article analyzes the features of the court sentence, which the science of criminal pro-cedure law traditionally defines as its external properties. The authors justify that such traits of the sentence as exclusivity, obligatory, verity and prejudicialness should be understood not as external, but as essential properties of the sentence. This is explained by the fact that the sentence as an individual act of a sub-regulatory regulation is an additional element of the legal criminal and criminal procedure regulation mechanisms, strengthening their impact on public relations. In this regard, the sentence a priori, regardless of the law-realization activities of the court, must have the properties of exclusivity, generally binding nature, verity and prejudi-cialness, because otherwise, the legal regulation will not achieve its purpose. This is the point of the sentence coming into force, and therefore, in the state of the final law enforcement decision, which means a certain resolution of the criminal dispute. The onset of the mentioned legal condition is associated with the launching of the principle of legal certainty, which ap-plies to the sentence only if there are such properties as exclusivity, generally binding nature, stability (irrevocability, cogency, invariability, and steadfastness), verity and prejudicialness. Prejudicialness and the related presumption of truth are not characteristic of any court deci-sion, but only the sentence, as they are based on the legal reliability of the court's conclusions, which is ensured by the course and the result of the trial, which includes the proof in the judi-cial investigation. Therefore, legal reliability is inherent only in the court's findings obtained during the trial, which is conducted in general order - without exemption from traditional fact-establishment procedures. In the case of the sentence, it should be a degree of legal reliability that allows it to be confirmed externally in the sentence by a legal symbol, i.e. the indication that it is ruled in the name of the Russian Federation. It is substantiated that the sentences, which were ruled in a special order, are illogical to confer on the property of stability because of the lack of legal reliability, which should not only be externally confirmed by the ruling on behalf of the Russian Federation but be also ensured by the entire course of the trial with a full-fledged judicial investigation. Such sen-tences, which were ruled in a special order, should not only be "blessed" by the symbol of legal reliability but should also be called in a different way, that will distinguish them from the sentences - full-fledged acts of justice, having all the necessary essential properties. It is argued that the reflection of the "conciliatory" nature of such a court decision, which is the result of compromise proceedings in the names of the above sentences, is appropriate. It is proposed to call it a "conciliation sentence" - as such it will represent a separate type of conviction.

Przestępstwo oszustwa w polskim i niemieckim prawie karnym

Fraud is one of the most common crimes against property. Given the progress in information technology, digitalization and other areas, the number of frauds has been constantly growing for a few years now and legal regulations need to be adapted to the requirements of the present era. The legal retort to damage caused by fraudulent activities under the criminal law systems can vary. The subject of this paper is a detailed comparative examination of the Polish and German criminal regulations in the area of fraud. The research includes analysis of the statutory features of the basic type of this crime laid down in the Polish and German criminal codes with particular reference to subject, subjective side of an offence, object and objective side of an offence. Reference is also made to the criminal sanction and to the mode of prosecution in case of fraud. The analysis is based on views of legal academics and commentators and judicial decisions. The discussion is concluded with a comparison of the Polish and German provisions with an indication of the similarities and differences between these regulations.

Research on Criminal Regulations of Misappropriating Unit Obligatory Right —Based on the Case of Misappropriating Company Obligatory Right by Chu

In order to clarify whether misappropriating unit obligatory right constitutes the crime of misappropriating funds, the research starts from the object of the crime of misappropriating funds and makes it clear that its object is the right of possession and utilizing in the ownership of funds. Through research, it is found that the original intention of the legislation for the crime of misappropriating funds is to protect the assets of units that can be used immediately to perform the exchange function, and the difference between obligatory right and ownership of funds is whether it can be withdrawn, paid or used at any time. So the conclusion of the study is, for the behavior of misappropriating unit obligatory right, if the obligatory right is not due, it does not constitute the crime of misappropriating funds, and if it is due, it shall constitute the crime of misappropriation of funds.

Towards the Problem of Peculiarities in the Criminal Regulation Exercised by Foreign Legal Systems of the Institution of Liberation from Criminal Responsibility

Towards the Problem of Peculiarities in the Criminal Regulation Exercised by Foreign Legal Systems of the Institution of Liberation from Criminal Responsibility

Актуальные проблемы совершенствования механизма уголовно-правового регулирования хищений с незаконным проникновением

The article is devoted to the current problems of improving the mechanism of criminal regulation of theft, with illegal entry into a dwelling, premises or other storage facility. The author analyzes the many-sided criticism of the conflicting provisions of the Criminal Code, compares different points of view on the interpretation of the concepts of "dwelling", "premises", "structure", "storage". He proposes his own formulation of the qualifying feature of theft and substantiates the optimal solution to the problem under consideration, which consists in refusing to differentiate criminal liability depending on the place of seizure of property. In particular, it is noted that the public danger of theft is determined not by the place of seizure of property, but by the method of obtaining access to it. The author shows that the very concept of "illegal penetration" does not allow to give a proper legal assessment of the actions of persons who commit theft without penetration, but with overcoming obstacles to access to property, or pre-create conditions to facilitate access to it. Thus, in the article, the author reasons his point of view: the qualifying feature of theft, reflecting an increased rate of public danger of the method of committing a crime, should be overcoming means of protection, obstacles to access to property, or other premeditated creation of conditions that facilitate access to property.

Alcance de la Norma ISO 14001:2015 como Programa de Compliance Ambiental

La inclusión de la responsabilidad penal de la persona jurídica en el ordenamiento jurídico español, resulta ser un tema bastante debatido que ha dado lugar a la adopción de programas de compliance en diferentes sectores empresariales. Este ESTUDIO pretende identificar el alcance de la Norma ISO 14001:2015 como programa de compliance ambiental, con la finalidad de verificar si puede llegar a tener incidencia alguna dentro del proceso penal como programa de organización y gestión que genere alguna circunstancia de exención o atenuación de la pena, de conformidad con lo establecido en los artículos 31 y siguientes del Código Penal – CP, teniendo en cuenta que el artículo 328 CP, establece las penas que acarreará la persona jurídica cuando sea responsable de los delitos contenidos en el Capítulo III De los delitos contra los recursos naturales y el medio ambiente, del Título XVI De los delitos relativos a la ordenación del territorio y el urbanismo, la protección del patrimonio histórico y el medio ambiente, del Libro II CP. Así mismo, la presente investigación tiene por objeto analizar y valorar figuras jurídicas desconocidas en el marco legal colombiano, como lo son los programas de compliance y la responsabilidad penal de la persona jurídica; sino también realizar un estudio del contenido de la Norma ISO 14001:2015, como un estándar de calidad ambiental. Los resultados obtenidos, me permitieron establecer las causas y los requisitos que harían de la Norma ISO 14001:2015, un programa de compliance ambiental que cumpla con los requisitos de la normatividad penal española para ser un modelo de organización y prevención ambiental apto que podría ser considerado dentro del proceso penal como eximente o atenuante de la responsabilidad penal de la persona jurídica.

Criminal responsibility for propaganda inUkraine: a view through the prism of the proportionality principle

It is analyzed the key controversial issues related to the criminalization of propaganda. It is critically comprehended corpus delicti in the current Criminal Code of Ukraine, in which a criminal-legal prohibition of propaganda is established. The problematic aspects of the interpretation of the concept of propaganda and the current criminal and legal regulation have been determined.The notion of "propaganda" does not have a unanimous understanding nor in the Criminal Code of Ukraine, nor within the doctrine of criminal law. The common in most definitions of the abovementioned notion is the emphasis on the relationship between the concept of propaganda and targeted communication in order to achieve some aim. Purpose in propaganda means that is always intentional. However, there is a difference in the assessment of the impact that propaganda may have: it may be either positive or negative. Initially, the notion of propaganda had no negative connotation. It was firstly mentioned in the General Congregation for Propaganda in 1622, in which it was used to emphasize the need to spread the Christian faith.To a large extent, in the twentieth century, along with the development of media, in addition to the usual media (newspapers, brochures, posters) new ones appeared (cinema, radio, television). It became a crucial point in developing new forms of using propaganda in politics to unprecedented proportions. Propaganda began to be used as a tool for shaping the expected public opinion, beliefs, attitudes, which became the key to the legitimacy of certain political decisions, in particular during the First and Second World Wars, later during the so-called Cold War.After the Nuremberg tribunal in 1945-1946, it became clear to lawyers that the effects of propaganda, especially Nazi propaganda, could be devastating for democratic states and human rights. Therefore, the criminal codes of different countries banned certain forms of propaganda. However, this prohibition was not absolute and was related only to those forms of propaganda that defined the legislation as socially dangerous or harmful.

Застосування процедури медіації у кримінальному процесі Австрії, ФРН та Швейцарії

У статті проаналізовано кримінальне процесуальне законодавство та нормативно-правові акти, якими регламентується врегулювання кримінально-правових спорів за допомогою медіативних процедур у Федеративній Республіці Німеччина, Австрії та Швейцарії. Зроблено висновок, що в різних країнах такі примирювальні процеси відбуваються по різному, в більшості в позитивному аспекті. Хоча, наприклад, така успішна й економічно розвинута держава як Швейцарія визнає медіацію недоцільною та невиправданою в економічному плані. У ФРН та Австрії примирювальні процедури, навпаки, застосовуються ефективно ще з кінця минулого століття.

Suicidio asistido y libre desarrollo de la personalidad en la República Federal de Alemania

Este documento analiza la controversia jurídica suscitada en la República Federal de Alemania en torno a la prohibición del favorecimiento comercial del suicidio. En su primer apartado, se explica brevemente el marco jurídico para las decisiones al final de la vida. Para ello, se hace hincapié en el acto delictivo contencioso vigente en el país desde 2015 y refleja el estado de la técnica de acuerdo con la principal literatura científica en este sentido. La segunda parte analiza la reciente sentencia del Tribunal Constitucional Federal alemán que declara inconstitucional la mencionada prohibición de fomentar comercialmente el suicidio. En particular, en esta parte se examina la construcción de un derecho a una muerte autodeterminada llevada a cabo por el último intérprete de la Ley Fundamental Alemana. En tercer y último lugar, el documento extrae dos conclusiones del análisis anterior. La primera es de carácter funcional y, dado que el Tribunal Constitucional Federal alemán no excluyó tal posibilidad, se refiere a la viabilidad de conceptos alternativos de regulación. El segundo corolario tiene un carácter dogmático y consiste en evaluar la significativa omisión del derecho a la vida en la argumentación del alto tribunal alemán.

La protección penal de los sentimientos religiosos: el caso español

En el presente estudio se analiza la regulación penal española sobre protección de los sentimientos religiosos, así como las críticas que se han efectuado a su mantenimiento. Se hace una valoración del derecho comparado europeo, atendiendo a los ordenamientos alemán, italiano, portugués y francés, y se constata que la protección de tales sentimientos es la regla general. Además, se parte del marco de relaciones entre el Estado y las confesiones religiosas, se comparan los diferentes sistemas y se llega a la conclusión de que en España existe un sistema de laicidad positiva. En último término se estudia si las ofensas pueden ser constitutivas de delito, si los sentimientos son susceptibles de tutela penal, y si es legítimo proteger penalmente los sentimientos religiosos. Además, se responde a las críticas al Código Penal español en esta materia y se propone de lege ferenda la restricción del artículo 525 del Código Penal.

Регламентация ответственности за преступления, совершенные с использованием электронных средств платежа, в законодательстве стран романо-германской правовой семьи

The article is devoted to the study of the regulation of criminal liability for crimes committed using electronic means of payment related to cybercrime in the legislation of certain foreign countries of the Romano-Germanic legal family. The article notes that the Romano-German legal system is significantly distinguished from other families not only by the fact that it possesses, due to historical traditions, many characteristics of the law of ancient Roman jurisprudence, but also by the legal peculiarities of criminal legislation on cybercrime. The relevance of cybercrime, its differentiation based on the Convention on Crime in the Field of Computer Information (ETS No. 185) and the peculiarities of the criminal regulation of crimes committed using electronic means of payment in Sweden, France, Germany, Spain, Netherlands, China and the Baltic States are noted. It is pointed out that the issues of combating such crimes are of particular importance in all countries of the Romano-Germanic legal family. Despite differences in the position of legislators with regard to the criminalization of acts committed by electronic means of payment, in all countries attacks on property are considered as attacks on the foundations of the State, and protection against such attacks is one of the most important State functions. It is noted that the criminal codes of most States include rules on computer fraud, computer theft; Obtaining information constituting commercial and banking secrecy through improper access to computer information (commercial, banking espionage); Extortion using computer equipment. It is stated that the first step towards criminal law protection of computer information, development of criminal legislation to counter economic cybercrime was taken in Sweden in the Law on Computer Crimes (1973).

Legal Principles of Procedural Activity and Interaction of Employees of Operative Divisions at Execution of Instructions of Interrogators, Investigators, Prosecutors in Regard to Carrying out Secret Investigative (Search) Actions

The author of the article provides a retrospective analysis of the provisions of legislative acts of Ukraine, decisions of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as some national criminal procedural legislation and departmental regulations on legal grounds for procedural activities and interaction of operative units to execute written instructions of interrogators, investigators, prosecutors on investigative (search) actions and secret investigative (search) actions. The author has made a retrospective analysis of the introduction of this amendment to the Criminal Procedural Code of Ukraine since 2012, as well as the legal grounds for its use in pre-trial investigation and has focused on the conclusions about its significant prevalence in law enforcement activities of pre-trial investigation, and in connection with recent amendments in the legislation also in the initial practice of the inquiry agencies of the National Police of Ukraine. The author researched positions of scholars and representatives of scientific schools in relation to the conceptual apparatus and the essence of the concept of “interaction” in general, as well as “interaction” between pre-trial investigation and inquiry agencies and operative police units in this direction. Special attention has been paid to the study of the peculiarities of forms of interaction and its subjects in criminal proceedings, as well as the existing legislative and practical issues concerning the compliance with operative deadlines of police orders of interrogators, investigators and prosecutors and has suggested the ways to solve them in practice and, in particular, at the legislative level.
 Additionally, it has been established, substantiated and focused on theoretical and applied improvement of the use of such a feature in law enforcement activities that operative staff, in carrying out written instructions of interrogators, investigators and prosecutors on the conduction of investigative and secret investigative actions, has procedural rights of the investigator and interrogator. Based on this, the author also offers propositions and recommendations in this area.

CASTRATION AS AN ENTERPRISE OF CRIMINAL POLICY IN THE CHILD PROTECTION LAW

The rise of sexual violence against children in Indonesia requires strict legal rules and a deterrent effect on perpetrators. So the government in the latest child protection law includes punishment for castration. The issues raised are how the application of criminal law against perpetrators of sexual violence against children (pedophilia) in Indonesia and how the additional criminal regulation of castration as a criminal law policy in the child protection law. The type of research used is normative research, which is research that focuses on a positive direction in the form of statutory regulations. Criminal application for perpetrators of sexual violence against children is regulated in the Criminal Code and the Child Protection Act. Castration is a new legal policy by the government in dealing with the perpetrators of sexual violence against children.Keywords: Castration, Legal Policy, Child Protection

Design Justice in Municipal Criminal Regulation

This Article offers a model for addressing current inequities in U.S. municipal criminal regulation through design justice theory. Historically, municipal courts in the United States have been the arbiter of minor crimes, processing traffic tickets and other low-level criminal charges. They have also served to uphold Black Codes, segregation, anti-protest laws, and “broken windows” criminal regulation. Enhancing equality in municipal courts requires meaningful participation from across the city’s populace. Participatory design- a framework within urban planning, architecture and design fields- is a practice with honed protocols for implementing meaningful participation from “users” of a place or product. The goal of participatory design is to seek out and implement guidance from the people most affected. Design justice, a modern refinement of participatory design, prioritizes perspectives marginalized in local planning and decision-making. Municipal courts have had a disproportionate and deep impact on the advancement of minorities and poor people. This Article proposes that municipalities implement design justice processes in municipal criminal regulation. In this piece, I analogize the use of design justice in contemplating Confederate monuments and other public sites of exclusion to the redesign of municipal criminal regulation. Design justice has emerged as a practice centered on the re-envisioning sites of exclusion and recognizing the invisible power hierarchies that undergird public uses of space. I emphasize that participatory design, and design justice in particular, provides critical tools for meaningful change in municipal criminal regulation. Applying design justice to the reform of local criminal regulation involves three precepts: grappling with the historic role of municipal courts, creating tools for public participation, and articulating clear and shared understandings of the spatial impacts of municipal criminal regulation. Critical uses of design justice allows municipalities to subvert traditional roles of insider and outsider, disenfranchised, and expert in criminal regulation. Ultimately, design justice offers a path towards a broader understanding of court experiences and is adaptable to the work of deconstructing criminal municipal regulation and rebuilding more equitable laws.