Fundamental Principles Of Criminal Law Research Articles

THE CONDITIONS OF CRIMINAL LIABILITY OF THE LEGAL PERSON

In this article I tried to summarize essential aspects regarding the criminal liability of the legal person. People can be involved in criminal legal relations, both individually and organized according to the law in the form of legal entities. One of the subjects of criminal liability according to the Criminal Code in force is the legal person. Since it is an active subject of the crime different from the natural person, naturally the conditions for the existence of his criminal liability are also different. Also, the legal person attracts a distinct form of liability, with specific features, which is subject to its own rules, separate from those applicable to the natural person. However, like the natural person, the legal person is subject to compliance with the fundamental principles of criminal law. The legal person participates as a distinct legal subject in the most varied legal relationships: civil, commercial, financial, administrative, banking and criminal. The introduction into Romanian criminal law of the criminal liability of the legal person took place through Law no. 278/2006, amending the Criminal Code from 1968. Currently, the Criminal Code in force dedicates Title VI to this legal institution entitled "Criminal liability of the legal entity". I chose this theme considering the challenges it entails and the issues it raises. I tried to answer some of them, such as the premises of the criminal liability of the legal person, showing how the criminal sanction was reached from the historical perspective of the legal person, I then explained the necessity that determines the regulation of such liability in criminal law, I explained the notion of a legal person, I have shown the conditions under which the criminal liability of the legal person is engaged and the way in which legal persons are sanctioned from a criminal point of view. I also presented a case in which the criminal prosecution of this subject of criminal law is practically illustrated.

Mitior lex in national and international case-law – (second-hand) fundamental principle of criminal law?

Several recent rulings by the Court of Justice of the European Union, the Romanian Constitutional Court and the High Court of Cassation and Justice raise the issue of the supremacy/primacy of European Union law over national law, especially with regard to criminal or constitutional provisions in respect to mitior lex principle and its influence over criminal responsibility towards crimes against the financial interests of the European Union. The national courts supported the view that the legality and mitior lex principles constitute fundamental principles of constitutional law and also criminal law, barring, when applicable, prosecution irrespective of crime. However, the European Court ruled that limitation period has no connection whatsoever with these principles at EU level and as national standards, only the legality principle outweighs the effectiveness of criminal law measures in combating fraud against the financial interests of the European Union, while the mitior lex principle, despite being recognised as a fundamental principle stemming from the common traditions of Member States and also the Charter of Fundamental Rights of the European Union, falls short in comparison. In the following we will analyse the evolution of the problem, but also possible solutions.

Proportionality: A Principle to be Re-evaluated in Albanian Criminal Law

The numerous amendments to the Albanian Criminal Code introduced over the years have continuously toughened penalties for criminal offences, raising doubts about the legislator's adherence to the proportionality principle. This issue has aroused an interest in treating proportionality as a fundamental principle of criminal law, particularly in guiding the legislator in determining appropriate punishments for criminal offences. Doctrine and jurisprudence constantly emphasize that disproportional sanctions, on the one hand, affect the re-educational and re-socialization processes, and on the other hand, they affect the discretion of the judge who, during the process of individualization of punishment, must adapt the penalty to the social danger of the criminal offence. The Albanian Constitutional Court's jurisprudence has addressed proportionality issues in a significant judgment that opened the possibility of control over the legislator's political discretion. In this regard, the Albanian Constitutional Court considered some provisions of the Criminal Code in breach of Article 17 of the Constitution because the punishment provided for the criminal offence was disproportionate, affecting in this way the re-educational process of the perpetrator. On this occasion, the Court stated that the penalty is determined by weighing the social danger of the crime and the perpetrator's level of culpability. Furthermore, the Court considered that since criminal punishment restricts fundamental rights, it should be limited to those actions or omissions that, according to the principle of proportionality, are comparable in importance to the values they safeguard. 
 
 Received: 6 May 2022 / Accepted: 29 June 2022 / Published: 5 July 2022

General

General Christopher T. Begg, Fred W. Guyette, Michael W. Duggan, and William J. Urbrock Christopher T. Begg Catholic University of America Fred W. Guyette Erskine College and Seminary Michael W. Duggan Calgary AB, Canada William J. Urbrock University of Wisconsin Oshkosh 904. [Transforming Memories of Collective Violence] Sonja Ammann and Julia Rhyder (eds.), "Editorial Introduction: Transforming Memories of Collective Violence: Key Methods and Future Direction," HeBAI 10 (1, 2021) 1-10. As guest editors of this issue of HeBAI, A. and R. provide an introduction to the issue organized under the following headings: (1) Approaching Ancient Narratives of Collective Violence; (2) Defining Collective Violence; (3) Remembering Collective Violence in the Hebrew Bible; and (4) The Articles in this Issue. For abstracts of the five articles making up the remainder of the issue, see ##911, 913, 1407, 1428, 1429.—C.T.B. Google Scholar 905. [Inquiring of the Dead] Shaul Bar, "Inquiring of the Dead," JBQ 49 (3, 2021) 171-79. In the ancient world it was common practice for people to spend the night in a temple or shrine and to make a sacrifice, in hope of receiving a divine message through a dream. Today this ancient practice is referred to as "incubation." In the Hebrew Bible we read that Jacob/Israel stops off in Beersheba on his way to Egypt and offers sacrifices, after which the Lord does appear to him in a vision at night (Gen 46:1-4). Solomon goes to Gibeon, the site of the great high place, where he offers a thousand animals on the altar there—and the Lord appears to him in a dream at night (1 Kgs 3:4-15). Some people inquired of the dead to learn about future events, as Saul did in 1 Samuel 28, but two verses in Leviticus clearly state that this is prohibited (Lev 19:31 and 20:6). An explicit criticism of the practice is also found in the retelling of Israelite history in Psalm 106: "They attached themselves to Baal Peor and ate sacrifices of the dead" (Ps 106:28). In Isa 65:4, a similar practice is described. In the Hebrew Bible, however, the understanding is that Israel worships a living God. God is the God of the living, not of the dead.—F.W.G. Google Scholar 906. [The Question of "Cultic Prostitution" in the OT] David Bindrim, "Schuld sind de Kanaanäer und die 'Versumptheit beider Geschlechter'. (Kult)prostitution im Alten Testament," Erotik und Ethik, 229-44 [see #1683]. In this discourse-analysis contribution, B. surveys the alleged references to cultic prostitution in ancient Israel as well as in the ANE in general. He begins his discussion with a consideration of those OT passages in which mention is made of qĕdēšîm, a term that is often understood as designating cultic prostitutes. In a second step, B. shows that we have very little evidence regarding the existence of prostitution in the ancient Israelite context, this leading him to conclude that one should be very cautious about making absolute statements regarding the phenomenon: in the interests of historical accuracy, one does best to acknowledge that we simply do not know much about the matter. [Translated and adapted from editors' introduction, p. 9—C.T.B.] Google Scholar 907. [Blood Guilt and Monetary Compensation in Biblical Law and Mari Letters] Yigal Bloch and Nathan Wasserman, "Blood Guilt and Monetary Compensation in Biblical Laws and Mari Letters," Beit Mikra 66 (1, 2021) 7-32 (Hebrew). In our article, we discuss a question bearing on the fundamental principles of criminal law in the Hebrew Bible: are these principles self-standing postulates on which the [End Page 341] biblical laws are based (as suggested by Moshe Greenberg) or rather late generalizations based on specific legal norms and statements that predate them? We address this question by considering Mesopotamian documents about a millennium older than the biblical legal corpora, i.e., two eighteenth-cent. b.c.e. letters from Mari on the Middle Euphrates and a nineteenth-cent. b.c.e. treaty between two towns in the Diyala basin. Despite the spatial and temporal...

CORRELATION OF THE PRINCIPLE: ENSURING THE RIGHT TO DEFENSE WITH OTHER PRINCIPLES IN THE CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF MOLDOVA

Interdependence of the principle ensuring the right to defense with other principles from the perspective of the criminal procedure code of the Republic of Moldova and article 6 of the European Convention. In approaching the notion of system of fundamental principles of criminal law, two aspects must be taken into account: on the one hand, the knowledge of its components and, on the other hand, the interdependence between these principles in achieving the purpose of criminal proceedings. Ensuring the right to defense, as a principle of criminal proceedings, is linked to other principles, which in turn ensure the possibility of ensuring the right to defense and a fair trial in general. No principle of criminal proceedings is superior or inferior, each having its own importance.

Problemy związane z tzw. konstrukcją ciągłości przestępstwa w odniesieniu do instytucji prawa karnego procesowego – res iudicata oraz zakazu ne bis in idem

Przemysław Krawczyk discusses the impact of institutions related to the continuity of a crime on the substantive validity of judgments in criminal cases and the ne bis in idem prohibition that flows from it. The study presents the views of doctrine and judicature which treat the scope of the validity of substantive judgment in relation to conduct (acts) committed in the conditions of continuity. It should be noted at the outset that positions on this issue tend to be diametrically different. Moreover, Krawczyk points out how important it is to set temporal limits to the continuity of an offence. This issue is of considerable importance from the point of view of the substantive validity of a ruling issued in a criminal trial, because incorrect or insufficiently precise delimitation of these limits may result in a violation of some fundamental principles of criminal law, both substantive and procedural.

Have you considered the opposite? A debiasing strategy for judgment in criminal investigation

Fundamental challenges in human decision-making pose a serious threat to fair evidence evaluation, verdicts in court proceedings, and the administration of justice. Drawing on cognitive psychology, we examined whether a consider-the-opposite approach can assist police officers with positive guidance on how to implement crucial legal thresholds such as the presumption of innocence. In an experiment with sworn police officers ( N = 100), we compared a consider-the-opposite condition and a control condition (with no further instructions) and measured the formulated alternative hypotheses. The results show a promising debiasing effect of the consider-the-opposite approach which may strengthen fundamental principles of criminal law.

Incomplete crime as an object of humanization of the Russian criminal legislation

The subject. The article is devoted to the problems of simultaneous harmonization between the policy of humanization of the Russian criminal law and the reduction of the crime rate in society. The institute of incomplete crime is proposed as one of the promising areas of humanization of criminal legislation. The authors analyze the norms of the Russian Criminal Code which determine the essence of an incomplete crime, as well as the specifics of imposing punishment for its commission. The subject of the research also includes the strategic provisions of the Russian legislation, which reflect the main directions of the implementation of contemporary criminal policy, its goal and objectives. The purpose of the article is to confirm or dispute hypothesis that it is inadmissible to criminalize the actions committed at the stage of preparation for the commission of an intentional crime, as well as it is admissible to mitigate the liability for attempted crime. Research methodology and techniques are represented by a number of general scientific and specific scientific methods of cognition, used primarily in humanitarian research. The establishment of regularities between the growth of crime rates and the degree of criminalization, determined in the current criminal legislation, is ensured by the use of the dialectical method of cognition. The methods of analysis and synthesis were used to compare statistical data on the state of crime in Russia and the dynamics of the number of convicts serving imprisonment. Various methods of formal logic were applied in the process of evaluating measures aimed at ensuring the humanization of modern Russian criminal legislation. The method of comparative legal research was used to study the content of the norms on responsibility for an incomplete crime. The result of the study is proof of the necessity to decriminalize actions that are currently defined as "preparation for the commission of a grave or especially grave crime." The necessity of a significant reduction in the degree of punitive criminal-legal impact on persons found guilty of an attempt to commit an intentional crime has been substantiated. Conclusions. It as expedient to partially decriminalize an incomplete crime and exclude this institution from the General Part of the Russian Criminal Code. This decision fully complies with the fundamental principles of criminal law: legality, guilt, justice, and will also ensure the effectiveness of the implementation of the modern policy of humanizing Russian criminal legislation.

Criminal Influence and Problems of its Definition in the Criminal Code of Ukraine

The article researches the term “criminal influence” which was introduced to the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) by the Law of Ukraine “On amendments to the Criminal Code of Ukraine regarding liability for crimes committed by criminal community”, and its correlation with the institute of complicity in a crime, in particular with objective elements of accomplices in a crime, as well as with illegal influence. The author concludes that there may be one narrow and two broad types of understanding of this term. Moreover, criminal influence may be considered not only from the criminal legal but also from the criminological point of view. Criminal influence is a part of the broader term of illegal influence. However, in contrast to other types of illegal influence, criminal influence, due to its social danger, is limited by the state specifically by the means of criminal law.The term of criminal influence introduced to the Ukrainian criminal legislation has serious gaps, so that it is extremely poor and practically inapplicable. Moreover, not only this term defined in the note to Art. 255 of the CC of Ukraine, but also corpus delicti provided for in Art. 255-1 of the CC of Ukraine (intentional establishment or dissemination of the criminal influence in society) should be substantially revised. The usage of general formulations and abstract concepts in the disposition of Art. 255-1 of the CC of Ukraine, as well as non-exhaustive lists of objective and subjective elements in the definition of the term of criminal influence violates the principle of legal certainty as a part of a broader rule of law principle. Bringing individuals to the criminal liability for committing crimes related to the criminal influence (intentional establishment or dissemination of the criminal influence in society and request for its application) or conviction of individuals for these crimes with a high probability will cause substantial violations of fundamental principles of criminal law and human rights.

Administrative responsibility and administrative offense

Administrative liability, as a type of legal coercion, is important for maintaining law and order, protection of an individual, protection of human rights and freedoms, performance of tasks and functions of the state. The description of administrative liability, given in the article, is connected with its inherent features and peculiarities of an administrative offense (misdemeanour). The most significant attention is paid to the issue, connected with public danger of an illegal act, taking into account the conceptual changes in criminal legislation, and, thus, criminal liability and as a consequence of administrative liability. The concept of reforming the Criminal Legislation provides for the preparation in addition to the Criminal Code of Ukraine, the Code (Law) on Criminal Offenses (misdemeanours) and the Code of Ukraine on Administrative Offenses. Taking into account the emergence of the phenomenon of “criminal misdemeanours” in the legislation of Ukraine, for committing of which there is criminal liability before the court (the judge), the author raises the question of defining such criminal offense as a socially dangerous act, but of less public danger than a crime, and all other misdemeanours (administrative) should be considered harmful, but not socially dangerous. Cases of such misdemeanours should be considered during administrative proceedings, according to the (procedural) rules defined in the Code on Administrative Offenses.Using the experience of legal regulation of European countries, we thus implement our legislation to the European one, but taking into account our national traditions and maintaining the fundamental principles of criminal law and maintaining such principles regarding administrative liability. So, criminal liability arises only in accordance with the Criminal Code of Ukraine and the Code (Law) on Criminal Offenses (misdemeanours) as socially dangerous acts, and administrative liability arises in accordance with the Code of Ukraine on Administrative Offenses (misdemeanours) that are not socially dangerous.

Theoretical Aspects of Differentiation of Criminal Liability for Taking Bribes

The paper analyzes theoretical approaches to the differentiation of criminal liability for accepting a bribe. It also discusses the opinions of legal schol-ars, as well as the content of the current legislation as part of this study, taking into account all the changes made to it. The study notes that the im-provement of the norms of Chapter 30 of the Crimi-nal Code of the Russian Federation and the devel-opment of their system is associated with the ratifi-cation of a number of international treaties by the Russian Federation, but requires further adjustment, taking into account the principles of criminal law. The author concludes that the basis for the differen-tiation of criminal liability for accepting a bribe is the typical degree of public danger of the deed and the person who commits this criminal act. At the same time, the establishment of differentiated criminal liability is the sphere of activity of the legislator, and individualization is the sphere of activity of the law enforcement officer, which corresponds to the im-plementation of such fundamental principles of criminal law as fairness and humanism in the admin-istration of justice in criminal cases. Based on the results of the study, the author concludes the need to further improve the differentiation of criminal liability for accepting a bribe, in particular, the divi-sion of officials who have committed this crime, based on the nature of their official functions. The author considers it possible to take into account the consequences that have occurred or could have occurred as a result of a person receiving a bribe.

Przestępstwo przyjęcia zlecenia zabójstwa (art. 148a § 1 k.k.) w ujęciu nowelizacji kodeksu karnego z 13 czerwca 2019 roku

Opracowanie podejmuje problematykę nowego, wprowadzonego mocą nowelizacji kodek-su karnego z 13 czerwca 2019 roku, przestępstwa odpłatnego przyjęcia zlecenia zabójstwa (art. 148a § 1 k.k.). Nie ulega wątpliwości, że jest to rozwiązanie bezprecedensowe, nadające zasadzie ochrony życia i jej zakresowi zupełnie nowego znaczenia. Wyprowadza ono ochronę życia z dotychczaso-wych ram zachowań zabronionych chroniących to dobro, przesuwając ją na płaszczyznę zachowań, które nigdy dotąd nie były karalne, bardzo oddalonych od wystąpienia zamierzonego przez sprawcę skutku. Przestępstwo to, na co zwrócono uwagę już w toku prac nad nowelizacją ustawy karnej w licznych opiniach formułowanych przez przedstawicieli środowiska karnistycznego, budzi wiele wątpliwości, w tym takie, które wiążą się z poszanowaniem przez tę ustawową konstrukcji funda-mentalnych zasad prawa karnego. Kryminalizacja zachowań na tak odległym przedpolu naruszenia dobra prawnego może być w szczególności źródłem kontrowersji w kontekście gwarancyjnej funkcji prawa karnego. Przeprowadzona analiza ma na celu zwrócenie uwagi na kilka najistotniejszych kwestii dotyczących tego przestępstwa, między innymi jego charakteru prawnego, uzasadnienia jego typizacji, konstrukcji jego ustawowych znamion, możliwych przypadków zbiegu przepisów czy przestępstw, w których może pozostawać, trudności, jakie nowa konstrukcja może nieść dla praktyki wymiaru sprawiedliwości, a także samej potrzeby wprowadzenia omawianej „modyfikacji granic” prawnokarnej ochrony życia człowieka.

Цели уголовного наказания как отражение современной уголовной политики.

The presented study is devoted to the issues of disclosing the content of the goals of criminal punishment, analyzing the possibilities of their actual achievement in the practical implementation of criminal punishment, determining the political and legal significance of the goals of criminal punishment indicated in the criminal legislation. The purpose of punishment as a definition of criminal legislation was formed relatively recently, despite the fact that theories of criminal punishment and the purposes of its application began to form long before our era. These doctrinal teachings, in essence, boil down to defining two diametrically opposed goals of criminal punishment: retribution and prevention. The state, on the other hand, determines the priority of one or another goal of the punishment assigned for the commission of a crime. The criminal policy of Russia as a whole is focused on mitigating the criminal law impact on the offender. One of the manifestations of this direction is the officially declared humanization of the current criminal legislation of the Russian Federation. However, over the course of several years, the announced “humanization of criminal legislation” has followed the path of amending and supplementing the Criminal Code of the Russian Federation: introducing additional opportunities for exemption from criminal liability and punishment, reducing the limits of punishments specified in the sanctions of articles of the Special Part of the Criminal Code of the Russian Federation, and including in the system of criminal punishments of types of measures that do not imply isolation from society. At the same time the goals of criminal punishment are not legally revised, although the need for such a decision has already matured. Based on consideration of the opinions expressed in the scientific literature regarding the essence of those listed in Part 2 of Art. 43 of the Criminal Code of the Russian Federation, the goals of punishment are determined that each of them is subject to reasonable criticism in view of the abstract description or the impossibility of achieving in the process of law enforcement (criminal and penal) activities. This circumstance gives rise to the need to revise the content of the goals of criminal punishment and to determine one priority goal that meets the needs of modern Russian criminal policy. According to the results of the study the conclusion is substantiated that the only purpose of criminal punishment can be considered to ensure proportionality between the severity of the punishment imposed and the social danger (harmfulness) of the crime committed. This approach to determining the purpose of criminal punishment is fully consistent with the trends of modern criminal policy in Russia, since it does not allow the use of measures, the severity of which, in terms of the amount of deprivation and legal restrictions, clearly exceeds the social danger of the committed act. In addition, it is proportionality, not prevention, that underlies justice – one of the fundamental principles of criminal law.

NULLUM CRIMEN SINE LEGE

This article discusses the issue of one of the most important Latin expressions that establish at the level of general principle that no crime exists outside the law.The purpose of the criminal law being the defense against the offenses of the right order, ensuring this order implies a strict respect of the principle of legality.Part of the principle of legality, the legality of incrimination, was formulated among the first, by the Beccaria in Dei delitti e delle pene and proclaimed also in the Declaration of Human and Citizen Rights (1789).Subsequently, the principle of legality of incrimination was passed in most criminal codes and even in some constitutions.The Romanian penal code emphasizes that the incriminations can only take place by law, not by other normative acts.In our law, crime is the sole basis of criminal liability.The second part of the principle of legality stipulates the legality of the punishments, so that, the crime being the only theme of the criminal liability, at the time of the commission the sanction must also intervene. Only when the sanction intervenes, it must be taken into account in particular that by sanctioning the offenders and the way in which the punishments are enforced some fundamental rights of the person are restricted, such as: freedom of movement, enshrined in all democratic constitutions, free development of the personality of the man and of his participation in the social and economic life, in the family life, the interruption of the professional activity and not lastly the affectation of his dignity. Therefore legality is a fundamental principle of criminal law: the criminalization can only take place through a law, and the sanction only if it is provided by law.

ПРИНЦИПИ ТРАНСНАЦІОНАЛЬНОГО КРИМІНАЛЬНОГОПРАВА У СВІТЛІ МІЖНАРОДНОГО ПРАВА

The article highlights systematic aspects of the major principles of transnational criminal law within the framework of international law transformation. The article is dedicated to the examination of the fundamental principles of international law and international criminal law, in particular, which are viewed systematically and in complex and tight connection with the principles of domestic criminal and criminal procedural law. The necessity of legal enshrinement of its principles is noted. The content of the fundamental principles of criminal law is overviewed, in particular, nullum crimen sine lege (No crime without a previous penal law), principle of individual criminal responsibility, principle of non-reference to the official or professional status of a person, prohibition of repetition of punishment for the same crime under international criminal law, execution of judicial power only by courts, equality of persons before the law and the court, local and temporal principles of criminal law (non-application of terms of limitation, territorial principle of criminal law etc.) Special attention is paid to the content of the universal criminal jurisdiction principle concerning transnational crimes, enshrined in the 2000 UN Convention against Transnational Organized Crime. The author comes to the conclusion that the principles of transnational criminal law are coordinated as between themselves and determine the main characteristics of transnational criminal law and directions of criminal policy.

Terrorist Speech and the Criminal Law – A Comparative Analysis

This article examines the ways that the criminal justice systems of England and the Netherlands deal with terrorist speech in the form of direct and indirect incitement to terrorism. This contribution commences with a discussion of the conditions under which the criminalisation of terrorist speech is justified. That discussion identifies criteria that must be satisfied if liability for terrorist speech is to be justified. The specific English and Dutch legal frameworks for addressing terrorist speech are then assessed in light of those criteria. This comparison provides the vantage point for a critical analysis of the merits and defects of terrorist speech offences. This contribution ends by identifying and discussing doctrinal elements that must be considered in order to ensure compliance with fundamental principles of criminal law and to prevent over-criminalisation.

Rethinking about fundamental principles of criminal law -free will and principle of criminal responsibility (Schuldprinzip)-

Rethinking about fundamental principles of criminal law -free will and principle of criminal responsibility (Schuldprinzip)-

The Proposed Plea Bargaining in Ethiopia: How it Fares with Fundamental Principles of Criminal law and Procedure

The FDRE Criminal Justice Policy embodies multiple reforms that are meant to address the various problems in the Ethiopian criminal justice system. The reforms include the introduction of plea bargaining which represents an unprecedented and ambitious development in the realm of the criminal justice system in Ethiopia. This article examines plea bargaining as envisaged in the FDRE Criminal Justice Policy and the Draft Criminal Procedure Code, from a principle based approach and argues that it hardly lives up to many of the fundamental principles of criminal law and procedure recognised under Ethiopian law. The most affected principles/rights include: the principle of presumption of innocence, the principle of equality, the principle of equality of arms, the principle of truth discovery, the privilege against self-incrimination and the right to silence, and the right to appeal. Key terms Plea bargaining, models of plea bargaining, the proposed plea bargaining, efficiency, fairness, accuracy, Ethiopia

Kant with Freud: Derrida’s Analysis of the Ancient Dream of Self-Punishment

During his 2000–2001 seminar on the death penalty, Jacques Derrida argues that Kant is the most ‘rigorous’ philosophical proponent of the death penalty and, thus, the thinker who poses the most serious objections to the kind of philosophical abolitionism that Derrida is trying to develop in his seminar. For Kant, the death penalty is the logical result of the fundamental principle of criminal law, namely, talionic law or the right of retaliation as a principle of pure, disinterested reason. In this paper, I demonstrate how Derrida attempts to undermine Kant’s defence of the death penalty by demonstrating both its internal contradictions (the tenuous distinction between poena forensis, that is, punishment by a court, and poena naturalis, natural punishment) and its strange affinities with the law of primitive peoples (as understood by Freud in Totem and Taboo). I argue that Derrida’s repeated returns throughout the seminar to Kant’s Metaphysics of Morals suggest that Kant’s seemingly rational defence of the death penalty is ultimately motivated by interests that belie the supposed disinterestedness of modern law and by a notion of natural justice that at once subtends and subverts all criminal law.

Criminal Law Grounds of a Law-maker and Law-enforcer

The legal term "legal ground" is associated exclusively with activities of the Constitutional Court of the Russian Federation. However, having dealt with the issue of applicability of this term, the author concludes that it is applicable to the activities of a legislator, the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. Based on the analysis of definitions of the term "legal ground" in law books, the author gives his own definition of the term. A criminal law ground of a legislator means a consistent and firm understanding of fundamental principles of criminal law that have been formed during the long history of the development of the science of criminal law. Criminal law grounds of the Constitutional Court of the Russian Federation reflect the meaning of legal rules and institutions of criminal laws within the framework of constitutional law and such grounds contain a formal conclusion with regard to the compliance (or noncompliance) of a rule in question to the basic provisions of the Constitution of the Russian Federation. Criminal law grounds of the Supreme Court of the Russian Federation involve interpretations of the provisions of the criminal law enshrined in the decisions of the Plenum of the Supreme Court of the Russian Federation aimed at ensuring their proper and uniform application by all courts in the country. The paper provides examples of unmotivated retreat of a legislator from initial legal grounds and making criminologically ungrounded changes in criminal law, which often leads to legal uncertainty. The author notes far from isolated cases when the Supreme Court of the Russian Federation changed its legal standing, although the legislative regulation of legal phenomena that are subjected to evaluation has not been changed. In this regard, the author cautions about the possibility of a negative impact of such derogations on the uniformity of a judicial practice and adherence to the rule of law.