Impact Of Criminal Law Research Articles

Criminalization of Cattle Slaughter and Individual Rights under the Indian Constitution

The laws of the prohibition on cattle slaughter are not new-fangled. They were debated over in the constituent assembly and subsequently have been in existence ever since. However, these restrictions might not satisfy the test of reasonability and may lead to the infringement of fundamental rights. When the duties of the State under Directive Principles of State Policy and fundamental rights of the individuals come in direct conflict, their harmonization becomes a prerequisite. The harmonization of conflicting interests is the practice of the judiciary to make sure that the compelling state interests do not flatten the rights of the individuals. Thus, the issue dealt with here emerges from the preceding incidents where laws prohibiting cattle slaughter were made stricter and the country witnessed instances of mob lynching where the vigilante groups ‘punished’ the individuals who allegedly slaughtered cow or consumed beef. Several states now have laws that prohibit the slaughter of cattle either absolutely or partially. However, the law in each state differs on even basic grounds such as the definition of beef and the nature of restrictions. Therefore, it becomes essential to understand the principles upon which criminal law can be used and the limitations that control the overreaching impact of criminal law. It is also important to apply these principles to the restrictions on cattle slaughter and consumption of beef to know whether these acts demand the use of criminal law, and the sentimental holiness of the cow is more important than human rights? This paper focuses on the concept of overcriminalization in the Indian context with reference to the restrictions on beef.

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.

THE EFFECTIVENESS OF CRIMINAL SANCTIONS AND SINGULARITY OF CRIMINAL LAW

The article describes the phenomenon of singularity in criminal law, as well as its impact on the effectiveness of criminal sanctions. It is noted that the crisis of criminal law policy has led to the emergence of extremely dangerous trends. One of these is the singularity of criminal law. The article defi nes this as a modern phenomenon in criminal law that refl ects its crisis. It is pointed out that the term «singularity», which is widely used in physics, philosophy, and mathematics, can be used in criminal law to generalise the boundaries beyond which it seems poorly possible or impossible to describe phenomena in terms of current representation and understanding. Attention is drawn to the position of scientists who point to the absorption of positive criminal law by the anti-law within the framework of the singularity state. Emphasis is placed on leveling traditional criminal law institutions such as sanctions, punishment, and their preventive, protective, and punitive effects. The infl uence of the singularity on the effectiveness of criminal sanctions is shown. It is emphasised that globalisation in social networks generates a new phenomenon of parallel criminal law impact.

Обстоятельства, отягчающие наказание

In the article on the basis of the latest amendments made to the Criminal Code of the Russian Federation circumstances aggravating the punishment are investigated, attention is drawn to some controversial legal and technical decisions in their formulation. The criminal law on the strength of influence of certain circumstances on the chosen punishment is clearly not enough, which does not contribute to enhancing the preventive role of the law, the elimination of subjectivism and discord in practice. Most scientists and practitioners support the idea of specifying, emphasizing that it will be easier to apply the law, circumstances of the case will be visibly linked to the chosen measure of criminal law impact, the importance of references in sentences to data on the case will increase, the preventive role of criminal law will increase, the prerequisites for a uniform understanding will be strengthened and application of the Criminal Code. It was not by chance that in the Soviet period of development of the science of criminal law, a tendency emerged to single out: a) main and b) other mitigating and aggravating circumstances. Consequently it is necessary to take into account the whole range of issues relating to the practical implementation of the idea of legislative specification of the strength of influence of individual circumstances: the circle of circumstances, which it may concern; the extent to which such circumstances influence the punishment (including the expediency of specifying in the law how much the punishment increases or decreases, or what is the upper or lower new limit within which the court selects the punishment taking into account the “main” circumstance). According to Part 2 of Art. 63 of the Criminal Code of the Russian Federation if the aggravating circumstances are provided for by the relevant article of the Special Part as a sign of a crime, it in itself cannot be re-taken into account when imposing a punishment. In the criminal law doctrine an exhaustive (closed) list of aggravating circumstances has not been approved by scientists, who believe that this method does not take into account changes in the sphere of public life to a certain extent.

ABUSE OF CRIMINAL LEGAL NORMS DURING THE REALIZATION OF RESPONSIBILITY FOR VIOLATION THE SAFETY RULES IN THE PRODUCTION OF WORKS AND RENDERING OF SERVICES

The subject. The article is devoted to analysis of abuse of public rights in the sphere of crim-inal prosecution for violation the safety rules.The purpose of the article is to identify the condition and prerequisites for abuse of public rights in the sphere of criminal prosecution for violation the safety rules.Methodology. The authors use theoretical analysis and synthesis as well as legal methods including formal legal analysis, interpretation of legal acts and adjudications.Results, scope of application. It is proved that such abuse is the application of the criminal law in controversy with its specific tasks, established by the interrelated provisions of art. 2 of the Criminal Code of the Russian Federation and art. 6 of the Criminal Procedure Code of the Russian Federation. The possibility of applying criminal law to the detriment of the pro-tected interests of citizens and in violation of constitutional principles is due to a number of factors: first, the blurring of the limits of criminal law impact in the field of security in the production of works or services, and secondly, the lack of isomorphism of criminal law norms providing for liability in the named sphere of public relations and, as a consequence, the lack of coordination of sectoral norms.Conclusions. Conditions for abuse the public rights in criminal sphere indicate that the leg-islator ignores the requirement of systematic legal regulation, since identical offenses can receive both criminal law and administrative legal assessment.

Взаимовлияние маргинальности и преступности на современном этапе развития общества

Purpose. The current condition of criminality and its change over time shows that along with a fairly long overall decline in the indices of all criminality and its most dangerous types, the share of crimes associated with such marginal demonstrations like crimes committed in a state of alcohol and drug abuse is increasing substantially. The share of recidivism reached 50%, over 60% of criminals do not have a permanent source of income, so there was a need to understand these negative trends of the criminality. Methodology: dialectics, abstraction, analysis, synthesis, deduction, formal-legal method. Conclusions. First, the crime reduction recorded over the past 11 years does not reflect a real criminal picture and can be misleading both researchers and practitioners. Secondly, further strengthening of marginal demonstrations in criminality is a significant threat to the population from the point of view of everyday threats of criminal encroachments. Third, the failure to take measures that reduce the intensity of such demonstrations will lead to a significant increase in not only criminal, but also the most serious administrative offenses. Fourthly, the current criminal law impact on persons who have a marginalized lifestyle and committed a crime does not give the necessary effect of correction, but often exacerbates the problem. Scientific and practical significance. The conducted research allows to supplement and improve control methods of demonstrations of marginality in crime. Using the experience of our country and other countries to develop a more constructive impact on those who do not want to comply with the norms of public order, constantly threatening the security of the surrounding population. Consequences of this study can be used to create legal acts that regulate the issues of the institution of criminological protection of private life and ensure national security, as well as to be applied in the educational process when training specialists in the field of crime prevention.

A New Kind of Exemption from Criminal Responsibility: the Theoretical, Legislative and Enforcement Aspects

Questions about the place of norms about exemption from criminal responsibility with the appointment of a judicial fine in the system of criminal law institutions, the difference of judicial fine from other criminal law measures, the grounds for exemption from criminal responsibility under article 76.2 of the Criminal code, and the appointment of a judicial fine are considered. It is stated that the basis of a judicial fine may only be established by court fact of the crime of a certain category, therefore it is difficult to explain the appointment of this measure to a person suspected of committing a crime; the purpose of restoring social justice when releasing from criminal responsibility with the appointment of a judicial fine is not achieved. A critical analysis of the resolution of Plenum of the Supreme Court of the Russian Federation from June 27, 2013 No. 19 «About application by courts of the legislation regulating the grounds and procedure of exemption from criminal responsibility» (new edition) in the explanation concerning the mentioned exemption from criminal responsibility is done. It is concluded that the appearance of the considered norms in the Russian criminal law reflects not only the search of more flexible methods of criminal law impact and new criminal law measures, but also about the failure of the state and society in solving the problem of crime prevention. Legal regulation of judicial fine in the future should be more detailed, the scope of application of article 76.2 of the Criminal code is narrower, and the resolution of the Plenum of the Supreme Court of the Russian Federation should pay more attention to the interpretation of article 76.2, 104.4 and 104.5 of the Criminal code.

The Content of the Principle of Economy of Repression

Dissertation and monographic studies devoted to the study of the content of the idea of of repression, its causation and the place it takes in the system of criminal law principles have never been carried out. The modern legal doctrine uses different names for it. A traditional term economy of (economy of criminal repression) is more accurate. There is often an unfounded identification of a) the scope of implementation of the principle in question, b) its content, and c) forms of implementation or even manifestation of the idea of of repression in separate normative regulations. An analysis of the content and scope of the principle of of repression is generally replaced by the study of the principles of humanity and differentiation of responsibility, as well as the principles of criminal policy. In the broad sense, the content of the criminal law principle of of repression covers holding a person criminally liable only if the objectives of correction and prevention are otherwise unattainable. In the narrow sense, of repression implies imposing a punishment as a last resort only when other criminal law punitive measures cannot be applied. At the same time, a punitive measure applied within the framework of criminal law effect, including punishment, should be minimally necessary and sufficient to achieve the objectives and purposes of criminal law impact In other words, the principle of of repression implies (1) refusal of repression when its application is possible, or (2) minimization of repression, provided a more intense punitive effect is possible. The author justifies the use of necessity and sufficiency criteria in determining the optimum of punitive effect of repression. Their subsequent specification is carried out during constructing the system of punishment, system of sanctions, general foundations and special rules for imposing punishments, and criminal law measures. The of repression possesses certain characteristics: 1. Economy of repression is based on the presumption of the validity of the criminal law prohibition and the presumption of the validity of criminal law punitive measures application; 2. Economy of repression provides for the opportunity to choose a law enforcement solution; 3. Economy of repression should be contingent; 4. Economy of repression includes minimization of the negative impact of the repression on the legal (and actual) status of other participants of emerging legal relations (the victim, members of the convict's family, etc.). The author highlights a phenomenon of forced and imaginary of (pseudoeconomy).

Проблема материально-правовой обусловленности дифференциации уголовного судопроизводства

The article discusses current issues of differentiation of criminal proceedings. The character of the impact of criminal law on procedural form of summary court proceedings. The author successively examines the substantive basis of summary court proceedings of Russian criminal trial: a special order of the trial, a special procedure for the trial at the conclusion of the pre-trial agreement, judicial procedure under Art. 226.9 of the Code of Criminal Procedure, as well as in criminal cases of private prosecution. The author concludes that the specific substantive basis is not peculiar to each of these procedures. Legislators did not specify the substantive grounds of procedure under Sec. 40.1 Code of Criminal Procedure. The court proceedings under Art. 226.9 CPC RF does not have its own substantive basis. The article concludes that all above said demonstrates the destruction of classical chords, according to which the differentiation of criminal law determines the differentiation of criminal procedural law in sphere of differentiation of criminal procedural form. Nowadays, on the contrary, the differentiation of the criminal procedure is carried out more rapidly and dictates the transformation of criminal procedural law. The article also analyzes the causes and symptoms of this trend of development of modern legislation.

Peculiarities of legal assessment of a particular criminal prohibition

Review. The construction of the legal (legalistic) assessment that is widely applied in the context of criminal law has not been properly analyzed as an institution of the relevant branch of law. This article analyzes the concept of the legal (legalistic) assessment, considers the elements of its structure (object, subject, ground and nature) and peculiarities if its manifestation. The article examines the process of implementation of this construction within the framework of the branch of criminal law, in particular, it addresses the issue of consideration of the qualification of crimes (criminal law qualification) as a type of legal (legalistic) assessment. As the analysis of sources has shown, in the doctrine of criminal law the legal (legalistic) assessment has been applied to particular categories and subcategories of crimes, objects of criminal infringement, some elements of the objective side of the crime, actions the criminality of which can be excluded, particular insti-tutions of criminal law, particular articles of the CC of the RF, particular crim-inal law categories. The author justifies the statement that particular criminal law prohibitions must be subjected to the comprehensive assessment. A criminal law prohibition must be assessed as a regulatory legal prescription, a legislative legal construction that enshrines all possible types (models) of criminal conduct declared illegal under the criminal legislation in a specific historical period; as a formal state power command of regulatory nature that contains a personal obligation not to commit (omit to commit) socially dangerous acts declared illegal by the criminal law and that interpret social relations from the perspective of the mechanism of criminal law impact. The author concludes that in respect of a particular criminal prohibition its social causation and validity must be assessed, as well as its semantic content and the form of presentation as a criminal law prescription. At the same time the practice of implementation of a particular prohibition, i. e. its assessment as a state power command of regulatory nature, is to be assessed as well. Legal as-sessment of a criminal law prohibition that includes determination of its essential elements and characteristics and that is aimed at determining its social value is caused by the ambiguity of its social and legal nature. This is largely due to the grounds for assessment of a particular prohibition that also depend on the choice of the subject of assessment. Comprehensive legal assessment of a particular legal prohibition, having objective and subjective nature, should reflect the assessment of its various incarnations, acting as a bridge connecting theory and practice.

Criminalization, legalization or decriminalization of sex work: what female sex workers say in San Francisco, USA

Sex work is a criminal offence in San Francisco, USA, and sex work advocates have so far unsuccessfully campaigned for decriminalizing it. Some groups argue that the decriminalization movement does not represent the voices of marginalized sex workers. Using qualitative and quantitative data from the Sex Worker Environmental Assessment Team Study, we investigated the perspectives and experiences of a range of female sex workers regarding the legal status of sex work and the impact of criminal law on their work experiences. Forty women were enrolled in the qualitative phase in 2004 and 247 women in the quantitative phase in 2006-07. Overall, the women in this study seemed to prefer a hybrid of legalization and decriminalization. The majority voiced a preference for removing statutes that criminalize sex work in order to facilitate a social and political environment where they had legal rights and could seek help when they were victims of violence. Advocacy groups need to explore the compromises sex workers are willing to make to ensure safe working conditions and the same legal protections afforded to other workers, and with those who are most marginalized to better understand their immediate needs and how these can be met through decriminalization.

Socio-educational function of a punishment and conceptions of human nature (on the example of Michael Baurmann conception)

In the present debate on theory of positive general prevention more emphasis is put on empirical than normative issues. It is understandable since the number of empirical studies, proving the theses of moral-educational role of the punishment, carried out so far is low and the results are inconclusive and preliminary. This justifies the question if these theories have any grounds in social reality. It is even suggested that the theories are lawyers’ ideas and their greatest asset is the difficulty of obtaining an empirical proof. Because of this, one may refer to them without a fear that the claims will be rejected in empirical research (disregarding purely normative theories, that is). What is a characteristic feature of various version of positive general prevention is that it is meant to be achieved not by fear of punishment but other mechanisms which do not emphasise the element of constraint and real affliction of state-imposed punishment. It is most of all about emphasising persuasive, educational, socialising and symbolic character of criminal law impact as well as about creating a habit. In some theories, state-imposed punishment plays a role of an argument in shaping rationally motivated convictions which should favour voluntary obedience of criminal law norms. Since state-imposed punishment becomes a motivating measure which can be combined with autonomy and dignity of an individual, ethical reservations concerning it use are eliminated to a great extent. Because of this masking of the real character of stateimposed punishment, this is the point where the risk of its broader use appears. Therefore the primary task is to restate the theory of positive prevention into a general empirical theory whose claims can be verified. Previous studies have shown that these theories are available for empirical research, which belies the widespread belief that they can not be subjected to empirical verification. There is no doubt that the rearrangement of the thesis of general positive prevention and making terminology more precise would help in building an empirical theory. The biggest challenge is to develop a theoretical model of human behaviour which could support the theory of general positive prevention. The need to provide such a theoretical model of human behaviour was shown by German sociologist, Michael Baurmann, and it was him who undertook this task. Importantly, not only has he developed such a model, but he applied it directly to reformulate selected varieties of positive general prevention in an empirical theory. On an example of two models designed for different versions of positive general prevention, Baurmann showed not only how to organize the varieties of moral and educational theory of punishment, but also how to describe them in the language of empirical research. General prevention understood as general deterrence is based on a model of rational choice in the sense of homo economicus.

Wpływ prawa karnego na przekonania moralne społeczeństwa w świetle wybranych badań empirycznych

This text aims to highlight the impact of criminal law on the moral beliefs of society, which, although not directly or immediately, considerably affect public attitudes. In support of this view, the author cites the results of four studies by British and German researchers that answer the question of whether the knowledge or suggestions of other members of society influence people’s moral attitudes. Analysing the information obtained through experiments, the author explains the dependence of the change in moral attitudes under the influence of knowledge of the actual state of the law, but mainly under the influence of peers and other opinions. In conclusion, Barbara Szamota-Saeki also draws attention to the impact that changes leading to selected types of crimes being decriminalised or liberalised had on social morale, the impact that the severity of punishments had on the degree of social acceptance of these acts, and the state of social knowledge of criminal law in Poland and other countries. The article also stresses that the best way to study the impact of criminal law on social beliefs is through natural experiments, which will elucidate changes over the years.

THE CRIME OF STAGING AN EFFECTIVE STRIKE AND THE ENDURING ROLE OF CRIMINAL LAW IN MODERN LABOR RELATIONS

This article concerns the role of criminal law in modern, post‐New Deal labor relations. I emphasize the continuing function of the criminal law in limiting basic labor rights (to organize, strike, and provoke collective bargaining) as reflected in several common practices: the prosecution of labor organizing and protest activity as crimes; the persistent use of injunctions by the courts to curtail labor rights; and the indirect use of the criminal law by the courts and the NLRB to define unfair labor practices and to limit the scope of worker protections under the labor law. I hope to show how these functions reflect both change and continuity relative to the criminal law in pre‐New Deal times.The modern criminal law's labor‐repressive functions are far less crude and overt, and administered in a far more professional fashion, than in the days when criminal conspiracy, syndicalism, and vagrancy laws, for example, were used so extensively and blatantly to undermine labor rights. And rather than simply destroying labor rights, these functions operate alongside, and are incorporated into, a body of labor law designed to protect labor rights. On the one hand, this shift has been of real benefit to labor, allowing workers and organizers much more freedom in their struggles with employers. On the other hand, I argue, modern criminal law still plays a significant role in limiting labor rights. The very factors that now ease the criminal law's impact on workers—the subtlety, professionalism, and procedural regularity with which it is applied, and its coexistence alongside a functional system of labor laws—also obscure and rationalize its real effects on labor rights, making it easier for governments to use the criminal law against labor and harder for labor activists to challenge such practices. My goal is to help unmask these functions of the criminal law with the hope that organized labor and its supporters might better work against and around them.