Criminal Law Doctrine Research Articles

Peculiarities of the legislative model of the criminal law prohibition of smuggling

The article is devoted to the study of the peculiarities of the legislative model of criminal prohibition of smuggling. It is stated that the emergence of new and modernization of existing methods of smuggling is due to the correlation of the State’s customs policy in connection with the full-scale invasion of the Russian Federation and the introduction of the legal regime of martial law. The purpose of this article is to provide a systematic analysis of the amendments and additions made to Section VII of the Special Part of the Criminal Code of Ukraine in terms of criminalization of smuggling, to determine their effectiveness and expediency, and to formulate scientifically sound recommendations for improving criminal law regulation of social relations related to smuggling. The author establishes that the main factors which influenced the process of recriminalization of commodity smuggling are: an increase in the number of manifestations of smuggling of goods and their unreliable declaration; a decrease in revenues to the State Budget of Ukraine; stimulation of unfair competition; entry of products of inadequate quality into the domestic market; an increase in the shadow economy in the public sector; criminalization of smuggling of goods in certain EU countries; ineffective application of administrative liability measures. The author analyzes the need to strengthen criminal liability for commodity smuggling at the level of the European Union as a whole. The author elucidates the approaches available in the criminal law doctrine to solving the problems associated with the introduction of criminal liability for commodity smuggling. It is substantiated that in case of any change in the system of current criminal legislation, it is necessary to justify this type of rulemaking, i.e. to assess the admissibility and appropriateness of a criminal law novelty. The author emphasizes that it is inexpedient to distinguish criminal law provisions on smuggling by the type of subject matter. The author concludes that the model of criminal legal prohibition of smuggling chosen by the legislator determines the differentiation of criminal liability, and at the same time is a manifestation of the shortcomings of legislative technique, since it gives rise to the emergence of legislative models of smuggling with different objects of criminal legal protection.

Кримінально-правова характеристика суб’єкта корупційних та пов’язаних з корупцією правопорушень у сфері охорони здоров’я

The article is devoted to the analysis of the legislative regulation of subjects of corruption and corruption-related criminal offenses, finding out their specifics and types in the field of health care. A comparative description of the definition of subjects of corruption offenses in accordance with the Criminal Code of Ukraine and the Law of Ukraine "On Prevention of Corruption" has been made, a number of shortcomings have been identified and certain considerations have been expressed regarding the directions for improving the legislation. It is stated that the peculiarity of the subject of a corruption offense is the presence of special features that indicate, first of all, a certain legal status of a person, due to the sphere of activity (public or private), position, functions performed, powers, etc. The Criminal Code of Ukraine provides for a wide range of types of special subject of corruption criminal offenses, among which the key is an official. It was found that the anti-corruption legislation applies to all categories of health workers. At the same time, the Criminal Code of Ukraine provides for differentiation of responsibility for accepting a proposal, promising or receiving undue benefit by a special entity, given the presence or absence of the status of an official and a type of legal entity (public or private law) or the provision of public services. The most controversial for the doctrine of criminal law and law enforcement practice is the problem of a criminal legal assessment of a health worker receiving undue benefits in connection with legally significant actions. In particular, such acts can be qualified both under Art. 368 or 368-3 and under Art. 354 or 368-4 of the Criminal Code of Ukraine, which indicates primarily the shortcomings of criminal legislation and the lack of unified theoretical developments in this area.

Constitutional presumption of innocence and the institution of release from criminal liability: correlation issues

The purpose of the article is to determine, taking into account the results of the analysis of the current legislation of Ukraine and the provisions of the doctrine of criminal law, the issues of correlation and ensuring the compliance of the institution of release from criminal liability with the constitutional presumption of innocence. The methodological basis of the presented article includes a complex of general and special legal methods including analysis and synthesis, the method of description and observation, comparative- and formal-legal methods. Results and conclusions. The article, taking into account the results of the analysis of the current legislation of Ukraine and the provisions of the doctrine of criminal law, identifies the problems of the relationship between the institution of release from criminal liability and the constitutional presumption of innocence. It is established that the release from criminal liability does not refute the admission of guilt of a person, if you give him the value of official confirmation (statement) of the fact that he committed a criminal offense. It is determined that the release from criminal liability also concerns the problems of ensuring the rule of law in the activities of public authorities, compliance of criminal law with the principles and norms of international law, systemic coherence of various branches of the national legal system. It is determined that the presumption of innocence is recognized as one of the fundamental principles of criminal justice in a state governed by the rule of law. At the same time, it is an important element of the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is part of national law by virtue of Article 9 of the Constitution as an international treaty. However, despite its fixation in the most important international legal acts that enshrine universal standards of fundamental human rights, and the enshrinement of the Constitution of Ukraine states that in practice the presumption of innocence is often violated, as evidenced by a number of decisions of the European Court of Human Rights concerning Ukraine.

Criminally Relevant Psycho-Emotional States of Individual: Problems of Consideration when Assigning Punishment

The paper reviews the problems related to the assessment of criminal law significance of the psychoemotional states of an individual at the time of committing crimes. An analysis of forensic practice and judicial statistics allowed the author to focus attention on the increase in both the total number of persons referred to forensic psychiatric examination and the number of identified insane and partially sane persons. This has made several issues more urgent. It is important for the court to consider if the guilty party is limited in sanity; when sentencing the guilty party, the nature of their behavior in the period immediately preceding the commission of the crime; the psycho-emotional state of the subject when implementing the principle of guilt in crimes committed negligently. The problems that cause the greatest difficulties in law enforcement practice and disagreements in the doctrine of criminal law are identified. The most promising ways to solve them have been outlined. According to the author, the adoption by the Plenum of the Supreme Court of the Russian Federation of special explanation on the issues of considering criminally relevant psycho-emotional states should contribute to the removal of these problems. The document must, in particular, clearly spell out the options for considering the limited sanity of the perpetrator when assigning a sentence, as well as the nature of his behavior in the period immediately preceding the commission of the crime. The author also advocates for expanding, at the legislative level, the grounds for recognizing an act as committed innocently.

The public danger of an act in an intersectoral dimension

Relevance. In the criminal law doctrine, the sign of public danger is defined as fundamental, allowing one to distinguish a crime from other offenses. The increasing complexity of existing legal relations and the unsystematic development of sectoral rule-making call into question this dogmatic judgment. The feasibility of using this characteristic as an unconditional basis for criminalization requires verification.The purpose of the study is to assess the prospects for using the sign of public danger to criminalize an act and distinguish a crime from other offenses.Objectives: study the genesis of the material sign of a crime with the identification of its criminal-political function at the stage of its emergence and in the process of evolution.Methodology. The methodological basis of the study was the universal dialectical method of cognition of phenomena and processes of the surrounding reality. In the course of developing the theoretical provisions of the work, historical-legal, formal-logical, formal-legal, semantic and other methods were also used.Results. Initially, the sign of public danger had a fundamentally different criminal and political meaning. It opened up wide possibilities for applying the law by analogy. The question of distinguishing the criminal from the noncriminal through its use was not raised. Subsequently, the demarcation of protective legislation and attempts to give sectoral uniqueness to criminal law by using a material sign of the social danger of an act did not resolve the issue of the boundaries of criminalization and the limits of the state’s punitive power; on the contrary, the situation worsened. Using examples from practice, based on the judgments of researchers about the essence of the social danger of an act, the authors of the article question the advisability of using this feature as an unconditional basis for the criminalization of an act.Conclusions. Based on the results of the study, the authors come to the conclusion that in the process of criminalization of an act, the focus of attention should be shifted from an idealized sign of social danger to the principles of criminalization: economy of repression, formal certainty, intersectoral consistency and proportionality, as well as the expediency of criminalization (declaring a crime) from the perspective of the possibilities of criminal the right to influence real relationships, transforming them qualitatively.

Signs of the subjective side of murder as a typical legal construction

The basic law of our state enshrines the conceptual provision, according to which human rights and freedoms and their guarantees determine the content and direction state activities. And therefore the protection of a person from criminal offenses, the protection of his rights, freedoms and legitimate interests is one of the most important tasks of state policy. One of the most important issues in the application of the criminal law is the definition of which one the criminal offense was committed by a person and under what criminal law the offense is foreseen. This issue is resolved in the process of criminal qualification Offenses Demarcation of the components of individual criminal offenses is important significance in the process of carrying out criminal-legal qualification. Meaning of legal practices, precedents and doctrines of criminal law for proper qualification criminal offenses are difficult to overestimate. The subjective side of criminal offenses (crimes, criminal misdemeanors) is an important part application of the law on criminal liability. The demands of today require a clear understanding of the theory of the subjective side of the criminal offense and practice. The modern stage of the development of the domestic science of criminal law and process determines the need for further research of scientific views on the theory of qualification criminal offenses and their successful application by law enforcement agencies, which will unconditionally contribute to the correctness and unity of judicial practice in solving tasks criminal proceedings. At the same time, ensuring the unity of practice is implementation the principle of legal certainty, which is embodied in compliance with general principles criminal proceedings established in Art. 7 of the Code of Civil Procedure, by means of the same application specific rule of law in similar legal relations. Correct qualification of a criminal offense for a committed socially dangerous act is mandatory a condition for the administration of justice in accordance with the law and one of the guarantees of compliance the convention requirement of the human right to a fair trial, provided for in Article 6 of the Convention on the protection of human rights and fundamental freedoms of 1950. Key words: murder, subjective side of criminal offenses (crimes, criminal misdemeanors), theory of qualification of criminal offenses, qualification criminal offenses on subjective grounds, court practice.

The Nature of Preparatory Actions and Their Role in Committing Criminal Offenses in the Republic of Albania

Generally, criminal offense is not consummated by being implemented as if by magic. It is undoubtedly the result of a long process of reflection, efforts, and escalated feedback. The awareness of criminal offense or the entire process in which the full realization of the it passes, is carried out in several stages. Some authors think that preliminary criminal activity is characterized by three stages while there are also other authors who accept only two stages of carrying out the preliminary criminal activity, which are; preparation and attempt to commit the criminal offense. The stages in which the criminal offense is actually carried out are, the birth of the criminal thought; the emergence of the thought; the decision to commit the criminal offense; the preparatory actions which are taken in order to successfully commit the criminal offense; the beginning of the execution of the criminal offense which can attempt to commit it "delictum consummatum", remains. Between the birth of the thought to commit a criminal offense and the completed of it, there is a series of intermediate acts. One of these phases is characterized by what are known in criminal law doctrine as preparatory actions. The meaning and nature of these acts are of theoretical and practical importance. Firstly to correctly distinguish the legal moments that follow the preparatory acts, secondly to avoid possible mistakes in the legal definition of the criminal offense and thirdly for the accurate requirement of the criminal sanction. Received: 4 April 2024 / Accepted: 30 June 2024 / Published: 02 July 2024

The Essence and Meaning of Repetition in the Criminal Law of Russia

Introduction. From the standpoint of a critical analysis of the current criminal legislation of Russia, as well as the doctrine of criminal law and criminology, the article examines the essence and significance of the institution of repetition in the criminal law of Russia. Theoretical Basis. Methods. The research was carried out taking into account the directions of criminal policy in Russia, the constitutional analysis of normative legal provisions on responsibility for committing crimes. The use of the formal-logical research method made it possible to identify the essence and types of repetition in criminal law, and to establish the patterns of its implementation in criminal law. Results. In the course of the study, attention is drawn to the fact that the formation of the concept of “repeatedness”, in the context of the development of the sociological school of criminal law, implied the attribution to this institution, first of all, of situations of committing several criminal acts, bearing in mind the objective danger to society of the multiplicity of crimes and persons who commit them (for example, recidivists and professional criminals). At the same time, not only the multiplicity of crimes poses a danger to society and the State, but also the commission of other unlawful acts, which, if repeated, in some cases can acquire a qualitatively different character and reach the level of a criminal act. This position is the basis of the current institution of repetition and, in particular, the institution of administrative prejudice. In this regard, the presented work examines the essence, types, and meaning of repetition in its existing version in the criminal law of Russia. Discussion and Сonclusion. The problems of repetition are also considered in the aspect of the correlation of this institution with the theory of the dangerous state of the individual, the principle of the prohibition of punishment twice for the same act. The indicated aspects of the topic necessitated the appeal not only to works on the theory of criminal law, but also to the relevant issues of philosophy and logic. As a result, the author concludes that such a type of multiplicity as the repetition of offenses is singled out, the types of this multiplicity are determined and its importance for the criminalization and decriminalization of crimes is substantiated.

СУЧАСНИЙ СТАН НАУКОВОГО ДОСЛІДЖЕННЯ ТА ПЕРСПЕКТИВИ РОЗВИТКУ КРИМІНАЛЬНО-ПРАВОВОЇ БІОГРАФІСТИКИ В УКРАЇНІ

The article analyzes the current state of scientific research in criminal legal biography in Ukraine. The author defines criminal legal biography as a branch of biographical science which studies the peculiarities of formation, formation and development of fundamental criminal law doctrines, ideas, views and concepts of leading criminalists, taking into account their life biography, in particular, public, state, political, scientific and scientific-pedagogical activities. The author identifies the main areas of development of criminal law biography, in particular, writing dissertations, preparing monographic studies, compiling (organizing) editions of selected works and biographies (bibliographies) of leading criminalists. The first area in criminal law biography – conducting dissertation research on the criminal law (including criminological and criminal executive) heritage of prominent representatives of Ukrainian legal science. The second area in criminal legal biography – conducting monographic studies of the peculiarities of the formation and development of individual scientific schools in Ukrainian criminal law, criminology and criminal executive law. The third area in criminal legal biography is the compilation (arrangement) of publications (selected works, selected works, biographies (bibliographies), etc.) covering generalizations of the criminal legal (including criminological and criminal executive) heritage of certain leading representatives of Ukrainian legal science, in particular, containing both the full content and certain fragments of abstracts, articles, monographs, manuals, scientific and practical commentaries, textbooks, etc. The author outlines the prospects for the development of criminal law biography in Ukraine. Key words: biography, science, biographical method, law, research, criminal law heritage, doctrine, ideas, views, concepts, criminal law, criminology, criminal executive law.

Radiation, chemical, biological, nuclear threats (SBRN-defense) in the context of the doctrine of criminal law of Ukraine

The article contains an analysis of the criminal legislation of Ukraine in the field of CBRN threats. Based on the results of the study, the state of criminal and legal protection of the population against CBRN threats was determined in the conditions of the formation of the doctrine of criminal law of Ukraine against the background of the full-scale aggression of the russian federation against Ukraine, and the ways of forming a relevant system of criminal and legal protection in the field of CBRN threats were also determined.

Development of a System of Sources Russian Criminal Law

The formal source of criminal law should be recognized as those legal acts that can be directly applied by courts in resolving criminal cases and to which the court must directly refer in a court decision to justify its decision. The criminal law doctrine has convincingly proven the multi-source nature of the branch of criminal law. At the same time, the modern doctrine of sources sorely lacks a differentiated approach to their analysis and presentation. The implementation of a systematic approach in the context of a general theoretical doctrine of the forms of expression of law allows us to identify several substantively divergent groups among the sources of criminal law: a) sources of regulation of criminal legal relations that do not contain criminal legal regulations; b) sources establishing criminal legal regulations, including the criminal code as the only source establishing crime and punishability of socially dangerous acts; c) sources of normative specification of criminal legal regulations; d) sources of interpretation of criminal law regulations. Keywords: source of criminal law, systematic approach, source of establishing an order, source of specifying an order, source of interpretation of an order.

USE OF HIS OFFICIAL POSITION AS A QUALIFYING SIGN OF LEGALIZATION MONEY OR OTHER PROPERTY ACQUIRED BY CRIME

This article addresses the issue concerning the specific formulation of the qualifying characteristic "using one's official position" in the criminal offenses that entail criminal liability for the legalization (money laundering) of monetary funds or other property acquired through illegal means. The study examines the provisions of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Plenum of the SC RF), which elucidate the essence of this theoretical construct as reflected in its resolutions on various types of crimes. Additionally, the article pays attention to the opinions of scholars existing in the doctrine of criminal law.

Liability for Violation of the Obligation of Care in the Criminal Code of the Republic of Poland

The problem of non-fulfilment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system, and income level of the population. Ukraine has been in the process of integration with the European Union for a long time, so it is useful to study the foreign legislative approach to the regulation of responsibility for the violation of these obligations. The purpose of the article is to study the Polish experience of establishing criminal liability for non-fulfilment of child care obligations. In the research dogmatic, systemic-structural, statistical, historical-legal, formal-legal methods were used. Attention is paid to the legislation of the Republic of Poland, which provides for the right and duty of parents to care for and raise children. The genesis of the criminal law regarding responsibility for violation of these duties in the Criminal Code of 1932, 1969, and 1997 is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2009–2020) are summarized. The peculiarities of the structure of the crime composition provided for in Art. 210 of the Criminal Code of the Republic of Poland were studied; objective and subjective signs. The analysis was carried out on the basis of the doctrine of Polish criminal law and the practice of courts of general jurisdiction, in particular the Supreme Court of the Republic of Poland. The practice of the Constitutional Tribunal of the Republic of Poland was used. Based on the results of the research, conclusions were formulated regarding objects of criminal law protection; objective and subjective side and subject composition. The differentiation of criminal liability in case of causing death to the victim was noted. The legislator also provided in cases of this crime the possibility of notifying the competent family court about the expediency of deprivation or limitation of parental or guardian rights in case of committing a crime to the detriment of a minor or in complicity with him. The separation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against the family, as well as the improvement of criminal legal measures against persons who have committed such crimes, is supported.

Exposing, Reversing, and Inheriting Crimes as Traumas from the Neurosciences to Epigenetics: Why Criminal Law Cannot Yet Afford A(nother) Biology-induced Overhaul

In criminal proceedings, offenders are sentenced based on doctrines of culpability and punishment that theorize why they are guilty and why they should be punished. Throughout human history, these doctrines have largely been grounded in legal-policy constructions around retribution, safety, deterrence, and closure, mostly derived from folk psychology, natural philosophy, sociocultural expectations, public-order narratives, and common sense. On these premises, justice systems have long been designed to account for crimes and their underlying intent, with experience and probabilistic assumptions shaping theoretical discourses on the nature of crimes and offenders’ punishability. As scientific discoveries, inventions, and methodologies progressively developed to refine such doctrines and displace long-held assumptions, criminal courtrooms have increasingly witnessed counsels and judges relying on scientific evidence to submit, dispute, or validate claims. For instance, over the last century, criminal courtrooms have selectively admitted neuroscientific models, exams, and insights claiming to revolutionize our understanding of who is culpable and deserving of punishment. Most recently, advancements in epigenetics have promised even more profound challenges to long-standing criminal law doctrines. This article examines the reasons reversibility and inheritability of epigenetic markers might warrant revising culpability and punishment and concludes that epigenetic findings are not yet robust enough to justify such revisions.

A comprehensive study of the main theoretical and practical aspects of the qualification of crimes in the field of economic activity by evaluation criteria

The subject of the study is the theoretical, legal and practical aspects of the analysis and consideration of evaluation features in the qualification of economic crimes. The author, focusing on the key provisions of the theory of criminal law devoted to the interpretation of evaluative features of the corpus delicti, formulates their definition itself, classifying species diversity in relation to the norms of Chapter 22 of the Criminal Code of the Russian Federation. Special attention is paid to the elements of blankness, descriptive and evaluative dispositions of articles providing for criminal liability in the economic sphere of management. The importance of certain conceptual normative legal documents of regulatory branches of law, namely: banking, tax, currency and others for the process of correct qualification of certain types of criminal encroachments is emphasized. Exploring normative acts and scientific works in the context of the stated problems, the author uses as the main method of system analysis, as well as universal dialectical, logical, formal-legal, hermeneutic methods in their entirety that allowed a thorough analysis of the technical and legal basis for the construction of certain types of evaluation features within the framework of Chapter 22 of the Criminal Code of the Russian Federation, subdividing them quantitative (size), qualitative (not measurable in value) and cumulative; substantiate the theoretical and practical conclusions presented in the work, taking into account the latest legislative developments and the practical needs of the law enforcement officer. The work contains the author's approaches to such problems as the concept of qualification of crimes, evaluative features of the corpus delicti, the ways of their clarification and species diversity in the field of qualification of crimes of an economic orientation within the framework of the interaction of the doctrine of criminal law and law enforcement activities are formulated. The proposed innovations of the "basic legal structures" form in their entirety the novelty of the work. In addition, the author proposes the adoption of a separate resolution of the Supreme Court of the Russian Federation containing the basic principles for the use of the category of "evaluation features" within the framework of Chapter 22 of the Criminal Code of the Russian Federation for their orderly interpretation and uniform application.

Corruption criminal offences: concept and classification

The article highlights modern scientific approaches to the definition of the concept and classification of corruption criminal offences, as well as their general characteristics. The emphasis is placed on the unresolved issue of distinguishing between the signs of corruption and the signs of a corruption offence. The original author's position is expressed that corruption offences are endowed with corruption features which allow distinguishing them from other criminal offences and subjecting them to grouping. The position that corruption criminal offences are characterised by the general features of all criminal offences provided for by the Criminal Code of Ukraine without exception has been supported, along with which specific features should be distinguished, i.e. those which characterise only the category of corruption criminal offences. In particular, they include: abuse of office; presence of a mandatory object – an unlawful benefit; special subject, which is an official of public or private law, regardless of the legal form and form of ownership, as well as a person providing public services; presence of only a deliberate form of guilt, namely direct intent; special purpose of committing a socially dangerous act. Corruption criminal offences are also classified on the basis of the generic object of the criminal offence: corruption criminal offences against property, in the field of economic activity, against public security, in the field of trafficking in narcotic drugs, psychotropic substances, their analogues or precursors, against the authority of state authorities, local self-government bodies and associations of citizens, in the field of official activity and professional activity related to the provision of public services, against the established procedure for military service.
 It has been concluded that despite the absence of a statutory definition of the concept of corruption criminal offences in the current legislation of Ukraine, the criminal law doctrine is quite successful in filling this gap. At present, the definition of this concept, the list of both general criminal and special features have been formulated, and a fairly detailed classification of these features has been provided. In this regard, the emphasis is placed on the prospects for further research, in particular, in terms of investigation of corruption criminal offences, and establishment of the specifics of application of measures to ensure criminal proceedings in criminal proceedings under this category of criminal offences.

JINOYATGA SUIQASD QILISHDAN IXTIYORIY QAYTISHGA OID KONSEPTUAL QARASHLAR

The issue of voluntary renunciation from the stage of attempted crime is complex. Since the doctrine of criminal law divides attempted murder into completed and incomplete, it is appropriate to consider the issue of voluntary renunciation from each type of murder separately. It is known that the doctrine of criminal law establishes that it is impossible to renunciation voluntarily after a completed murder. However, in recent years of scientific research a point of view on the possibility of voluntary renunciation and exclusion of criminal responsibility is put forward. It should be noted that this point of view is scientifically and theoretically controversial, on the basis of the analysis of the norms of criminal law theory and case law the author’s position is formed on the basis of the analysis of opinions on voluntary renunciation from the stage of attempted crime. According to the results of the study, the author came to a number of conclusions. The corpus delicti of the crime is relevant to determine the presence of voluntary renunciation from the commission of a crime. Voluntary renunciation from the incomplete phase of murder is possible and does not entail criminal responsibility. Also the possibility of controlling the development of a person’s offense in a voluntary renunciation from the attempt; the presence of a time interval between the act and the risk of socially dangerous consequences; a number of circumstances should be taken into account, such as the active implementation of voluntary renunciation.

Causality in Italian Criminal Law

Modern Italian criminal law doctrine is dominated by the concept of equivalence of conditions as interpreted in the context of «scientific theory» developed in German theory in the 19th century. It is believed that when establishing a causal relationship, it is necessary to use the method of exclusion, focusing primarily on data from the natural sciences, then on data from other sciences and the maxims of general experience. When establishing a causal relationship, the determining factor is the probability of the occurrence of a consequence, while the question of the degree of probability remains controversial. The theories of adequate causation and human causation are rejected by Italian criminal law doctrine. The German theory of objective imputability is considered in the legal literature, it has supporters, but in practice, it is not accepted. The shortcomings of the «scientific theory» of causation are due to methodological errors. Causality is not a scientific category, but a philosophical one. Different sciences, natural and otherwise, have different criteria for establishing a causal relationship that are suitable for these sciences. In the natural sciences, repeatability, which can be assessed statistically, is of decisive importance for establishing a causal relationship. It is impossible to mechanically transfer the methodology of natural sciences to jurisprudence.

Запрос о правовой помощи: анализ правоприменительной практики

Request for legal assistance is one of the key tools of international cooperation of law enforcement agencies of many countries. The Russian Federation actively uses this mechanism in order to obtain the necessary information, to conduct certain procedural, investigative and operative-search actions within the framework of a criminal case, when it is not possible to carry out these or those actions on the territory of Russia (for example, the witness, suspect arrive in another country, property, documents and/or other objects of the material world, on which information is required, are in the possession and/or on the territory of another state). However, the issue under consideration has not been sufficiently studied in the doctrine of criminal procedural law, the empirical basis has not been investigated. The author analyses the law enforcement practice of law enforcement agencies of the Russian Federation, empirical data, identifies existing problems, errors and shortcomings in the work of specialists when sending requests for legal assistance, as well as points out the main reasons for refusals to execute requests, offering a number of developed recommendations based on international experience.

Particular Cruelty as an Evaluative Concept in Criminal Law

The element of particular cruelty in the Criminal Code of the Russian Federation is reflected in Art. 63 as an aggravating circumstance, as well as a classifying element in Art. 105, 111, 112, 131 and 132, etc. However, law does not disclose the content of this element. Along with the concept of «particular cruelty,» the Criminal Code of the Russian Federation operates with other, similar terms: torture, torment, bullying, sadism, torture. The content and correlation of the concepts under consideration seem ambiguous, which is the subject of discussion in the doctrine of criminal law. Judicial practice also testifies to the unresolved nature of this issue, which results in the absence of a unified approach in similar cases. The paper, among other things, substantiates the need to replace the concept of «particular cruelty» with the concept of «sadism» in Art. 131 and 132 of the Criminal Code of the Russian Federation. The thesis is put forward that particular cruelty can occur when committing crimes, the object of which is not only social relations that characterize the individual, but also the safety of public health and public morality.