Criminal Law Institutions Research Articles

Cessation of prosecution: conceptual approaches

The criminal trial represents a specific and complex activity that runs under strict rules that are stipulated by the norms of criminal procedural law. As a result of the criminal trial activity from the part of competent bodies with different tasks, appeared the necessity to divide the criminal procedure into more divisions, called steps of the trial, where complex activities separated into 2 important moments of the process, having different procedural forms and subjects, take place. The time evolution of the criminal process allowed to distinguish 3 stages, every single with a structure, evolution and a different reglementation. The first stage is the prosecution that due to its target and function has a special rol in the criminal procedure. The cessation of prosecution, being a criminal procedural law institution and representing the prosecution, is very important in the procedural activity thanks to its specific features that we are trying to explain in this article.

Comparative analysis of the criminal law institution “Expulsion from the Republic of Kazakhstan of a foreigner or stateless person”

The article illustrates problematic issues of regulation and practice of applying foreigner or stateless persons expulsion from the Republic of Kazakhstan as a criminal punishment type. The analysis of the features of regulation and the practice of applying such punishment abroad and in Kazakhstan was carried out. The purpose of the research is a comprehensive theory and practice analysis of the expulsion implementation as a criminal punishment type. The research is carried out through general and special legal methods, analysis and generalization of the legal norms governing expulsion in the legislation of different countries, the comparative legal method allows us to identify the main trends in the legal institution development “expulsion of a foreigner or stateless person” at the present time. The main result of the research is the provision on the need to improve the institute “Expulsion of a foreigner or stateless person” in the criminal law of the Republic of Kazakhstan. As conclusions, additions to the norms of the Criminal Code of the Republic of Kazakhstan are proposed, aimed at improving the Criminal Code Article 51, specifying the process of expulsion, as well as conditions list under which expulsion from the Republic of Kazakhstan is not assigned. It is proposed to supplement the article with provisions on “indefinite expulsion from the Republic of Kazakhstan”.

Impunity clause for corruption crimes practical issues

The following article touches upon some issues associated with pracitcal aspects of applyingimpunity clause for the corruption crimes in the Polish criminal law system. In particular, issuesconcerning the prerequisites for application of this clause related to the organ authorizedto receive a notification of a corruption crime as set out in Art. 229 6 of the Penal Code,as well as the formal rerquirements of this notification, such as its content and the notifyingperson, were highlighted. The article addressed the problems related to interpretation of theprerequisite of the knowledge of the authorities prior to which the self-accusation is madeby a person who provides or promises a material or personal benefit.Moreover, the interpretation of the regulations was made in respect of a person who cannotbenefit from the impunity clause. A special consideration was given to the procedural attitudeof the person who made the self-accusation in accordance with Art. 229 6 of the Penal Code,and in particular the durability of that attitude.The interpretation of the legal framework was also conducted in the context of determinationthe method of completing the investigation against a person who took advantage of the impunityclause. In addition to procedural issues, statistical data demonstrating the applicationof the above-mentioned institution of criminal law was presented. The international aspectof application of the impunity clause in respect of the perpetrators who corrupted peopleperforming public functions in foreign countries or in the international organizations, wasalso included. In this regard, a standpoint of the Organization for Economic Co-operation andDevelopment (OECD) was indicated, as well as the opinions dissenting from the one presentedby the above-mentioned organization. The article also includes de lege ferenda postulates, theimplementation of which, according to the author, may contribute to improving the applicationof the impunity clause for corruption offences.

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

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

Plurality of persons in crime as a new institution of criminal law of Russia

The plurality of persons in a crime is not considered in the Russian science of criminal law as an independent criminal law institution. The need to consider the multiplicity of persons in a crime in this capacity is due to the close relationship between the various types of multiplicity, as a result of which their comprehensive study is required to identify the essential content of each type, determine the criteria for their distinction and improve the mechanism for the criminal legal assessment of joint criminal activity. The present study does not imply a detailed study of each of the types of plurality of persons in the crime and can be considered as a theoretical formulation of the problem for its further study. A one-level system for classifying the multiplicity of persons in a crime is proposed: complicity in a crime, participation in a criminal association, special role-playing complicity, bilateral crimes, careless co-initiation, attachment to a crime. The main criteria for differentiating various types of plurality of persons in a crime have been determined.

Institute of Probation under the Draft New Criminal Code of Ukraine

The appearance of new criminal law institutes in the legislation requires scientific justification. The purpose of the article is to determine the author’s vision of the probation institution model in the draft of the new Criminal Code of Ukraine. In order to achieve the set goal, using historical legal, comparative, dialectical, systemic, hermeneutic, and other methods, international standards of treatment of offenders, the national and foreign legislation, doctrinal provisions were analyzed, formulated proposals for the project of the new Criminal Code of Ukraine were highlighted.According to the results of the conducted research, the provisions of the legal institution of probation in the project of the new Criminal Code of Ukraine have been scientifically substantiated. The considerations that guided the working group on the development of new criminal legislation when formulating new legislative provisions are given. The definition of the concept of probation and means of probation is substantiated, and the persons to whom probation is applied are outlined. Arguments are given regarding the expediency of establishing the general principles of probation and the rules for canceling, changing or supplementing probation measures. The duration of probation for different persons, as well as the legal consequences of probation, are determined.Probation as a criminal legal tool is a control, corrective and supervisory tool defined by the criminal law, which involves restrictions on the exercise of human rights or freedoms and is applied by the court to a person convicted of a crime, with the aim of ensuring the safety of society and encouraging this person to obey the law. At the same time, probation as a criminal law institution is an externally designed structural element of the field of criminal law (its General part), which constitutes a system of criminal law norms designed to comprehensively regulate social relations arising between the state and a person convicted of a crime, with the aim of ensuring society and encouraging this person to obey the law.The system of means of probation is a complex integrated complex of socially determined, qualitatively defined, interconnected and interacting elements, which have an integral structure. According to the content and functionality, the working group proposes to combine the means of probation into three groups: 1) control; 2) corrective; 3) supervisory.The positive consequences of probation in the form of non-fulfillment of the prescribed punishment occur for the person who behaved positively during probation. Probation has proven its effectiveness in practice, as more than 90 % of convicts to whom it is applied have positive consequences. The negative consequences of probation arise in connection with a person’s negative behavior and are differentiated for different categories of persons.

Relevant Connection in Criminal Law

The article is devoted to the study of modern problematic issues of causation in criminal law. These issues include, in particular, the issue of relevance of causation in criminal law itself, and the specifics of manifestations of relevance of causation in criminal law. The article notes that the purpose of scientific research is to identify and analyze the characteristics and criteria of relevant causation. The methods of the presented study include dialectical, systemic-structural, logical, etc. The results of the study are summarized in a number of important provisions. The author emphasizes the importance of the study of causation in criminal law as a formal and legal one, which is related to the study of causation as relevant, meeting the requirements and solving the problems of modern criminal law. The article notes that the characterization of causation in criminal law should not be limited to the connection between an act and socially dangerous consequences, since causality expressed by causation is manifested in a combination of components which are part of the content of various criminal law institutions. The article examines some characteristics of the relevance of causation in criminal law. Attention is drawn to the importance of legal and technical reflection of causation in criminal law as a condition for the relevance of causation. The article notes that the formalization of causation is the basis for considering such a connection as relevant (meeting legal requirements). The author examines institutional and inter-institutional manifestations of causation in criminal law. Furthermore, the author examines the causal manifestations which combine a criminal offense (in particular, a crime) and the legal consequences provided for by criminal law in relation to the subject who committed the offense. The article examines the peculiarities of causation in relation to certain criminal law institutions. The main conclusions of the study are the following: the need to clarify the criteria of relevant causation, the statement of relevant causation in criminal law within certain criminal law institutions, the need to consider causation in a broader criminal law context, and not only within the corpus delicti, etc.

Соотношение понятий института и субинститута в уголовном праве

The article considers correspondence between the concepts of institution and sub-institution in the criminal law. The understanding of the criminal law sub-institution as an element of the structure of criminal law institute requires verification in terms of analysis of the correlation between these concepts. It is especially urgent due to the fact that the term sub-institution itself is not used by the official doctrine and law enforcement. Such analysis allows us to clarify the indicators of sub-institution of law and the grounds for its correlation with the institute of criminal law. Such approach encourages the author to identify the characteristics of criminal law sub-institution as an element of structure of criminal law institution, examine existing academic opinions on sub-institution and its place in the system of criminal law.

Private secrecy as a criminal law institution

Private secrecy as a criminal law institution

ՀԱՆՑԱԳՈՐԾՈՒԹՅԱՆ ՊՐՈՎՈԿԱՑԻԱՅԻ ԴՐՍԵՎՈՐՈՒՄՆԵՐՆ ԱՆՀՐԱԺԵՇՏ ՊԱՇՏՊԱՆՈՒԹՅԱՆ ԻՆՍՏԻՏՈՒՏԻ ՇՐՋԱՆԱԿՆԵՐՈՒՄ / MANIFESTATIONS OF PROVOCATION OF A CRIME WITHIN THE FRAMEWORK OF THE INSTITUTE OF NECESSARY DEFENSE

In a number of institutional structures and legal norms of foreign and domestic legislation, certain provisions on provocation of a crime are fixed, which in one way or another correlate with various criminal law institutions. In this context, especially in connection with the innovations of the RA Criminal Code adopted on May 5, 2021, special importance is attached to making the manifestations of provocation of a crime within the framework of necessary defense the subject matter of research. In particular, among these innovations, the provision of provocative manifestations stands out as a condition for the absence of the necessary defense. The envisaged innovation, combined with rich experience on the necessary defense, will serve as an incentive to introduce the manifestations of provocation of a crime, clarify the place of this phenomenon in criminal law, as well as highlight the features of domestic regulations, identify the problems existing therein, and predetermine further development trends. Within the framework of the article, the issues of the combined connection of the necessary defense and provocation of a crime, as well as the criminal legal assessment of persons carrying out a provocation with imitation of the necessary defense were touched upon. The theses put forward in the article were based on doctrinal interpretations, and legal positions formed in judicial practice, foreign and domestic experience, which further strengthened their validity.

КОНВЕРГЕНЦИЯ ЧАСТНОГО И ПУБЛИЧНОГО ПРАВА В СФЕРЕ УГОЛОВНОГО СУДОПРОИЗВОДСТВА

The subject of the article was the identification of the main directions and results of the convergence of private and criminal law in the field of criminal justice. The purpose of the article was to sum up the results of the development in domestic science of a set of views on the process of convergence of private and public law in the field of criminal justice. The main subject of the analysis was the conceptual apparatus, which reflected changes in ideas about the measure of private and public in the mechanism of criminal procedure regulation. The author of the article tried to overcome dogmatic obstacles to strengthen private law values in the domestic criminal procedural culture, including ideas about a contractual method for resolving issues related to the conduct and completion of a criminal case. The main dogmatic obstacle is the postulate about the dominance of the public law principle, interpreted in the investigative sense. The investigative ideology hinders the convergence of private and public law in domestic criminal procedure science. The main areas of application of the author's developments are seen as «evidence law» and «law of accusation», as the backbone institutions of Russian criminal procedure law. It is in them that the essence of the Russian type of criminal process is embodied. Changes in these institutions are significant in terms of the degree of penetration of the private principle into their public law nature. The author comes to the conclusion that the convergence of private and public law in the field of criminal proceedings manifested itself in a number of sub-institutions, including private and private-public types of prosecution, alternative outcomes of a criminal case on some nonrehabilitating grounds, a pre-trial agreement on cooperation, a special procedure for considering a criminal affairs. All these institutions stand on two «super-institutions» of procedural law: accusation and proof. To some extent, both of these institutions were affected by the convergence of private and public law in the field of criminal justice. The conclusions made by the author contribute to the development of the general doctrine of the convergence of private and public law in the field of criminal justice. He makes specific proposals for the modernization of the institutions of prosecution and proof in the light of the concepts of «contract».

The concept of termination of a criminal case as an institution of criminal procedure law

The concept of termination of a criminal case as an institution of criminal procedure law

Социальные сети как правовой феномен

The emerging institution of legal regulation of social networking in different states appears in different ways. The comparative legal method of the studying made it possible to select two models: western (USA, Germany, France) and eastern (China). The Western model of legal regulation comes from “freedom of networked battlefield” and “freedom of speech”, the eastern one comes - from the “information security priority” and “deanonymiration of social networking”. Relations in the social networking have acquired independent features: big freedom of expression, a culture of clip thinking, “rudeness” in the relationships as the norm, as an impossible to nobility to identify the subject and the lack of responsibility. Under the studying of social networking, researchers form the conceptual provisions of “digital life” and “digital death” of personality. In Russia, the main problems of regulation social networking are the lack of legal definitions of the concepts “social networking”, “account”; industry uncertainty of public relations, which from in the social networking; a low level of safety for minors and the elderly people. It is proposed to consider social networking as public relations as an intersectoral legal institution of civil, labor, administrative and criminal law, also as procedural industries; legalize concept “social networking” and “account”; establish information security filters for minors and elderly people.

FORMULAS OF CRIMINAL AND ADMINISTRATIVE RESPONSIBILITY: PROBLEMS AND SOLUTIONS

In this article, the author advocates for the introduction of the institute of criminal offenses into the Criminal Code of Kazakhstan. The author argues that the shortened procedures for investigating these offenses by criminal prosecution authorities and their consideration in courts have led to serious violations of the principle of legality and a significant increase in the volume of criminal procedural activities by the bodies conducting criminal proceedings. The establishment of this institute of criminal law occurred without a critical examination of foreign practices and lacked a thorough scientific, legal, criminological, and economic analysis of the issue. Through an analysis of the norms of the Criminal Procedure Code of Kazakhstan (CRCoAP) and the Criminal Code, the author supports the viewpoint that abolishing the institution of criminal offenses would help resolve the issues within criminal law, particularly in clearly distinguishing crimes from administrative offenses. The article criticizes the legislator's move away from employing the institution of administrative prejudice in criminal law, which had been regarded as an effective preventive measure for differentiating administrative offenses from crimes. The author emphasizes the need to restore this approach within Kazakh criminal law. Additionally, the article addresses the long-debated topic in legal science that underpins the differentiation between administrative offenses and crimes.

Instruments Inducing the Cooperation of Members of Organised Criminal Groups with Law Enforcement Authorities in Polish Criminal Law – Article 60(3) and Article 259 of the Polish Criminal Code

The article is devoted to the analysis of instruments used to induce cooperation of members of organised criminal groups with law enforcement authorities. The most important regulations relating to this problem in terms of substantive criminal law are Article 60(3) and Article 259 of the Criminal Code. The article presents selected problems of interpretation of both provisions, the problem of their possible concurrence and also indicates the reasons why particularly Article 259 of the CC, despite the fact that it provides for complete impunity of the perpetrator, is not very often used in practice. This is because the benefits offered by it do not cover, which is fully justified, individual offences committed by an offender who is a member of a criminal group. Attention was also drawn to other criminal law and procedural institutions with similar functions, including in particular the institution of a crown witness.

Социально-правовая обусловленность криминализации общественно опасных деяний, совершаемых на рынке ценных бумаг

The development of the country’s economy and its integral element — the securities market, at all stages of the development of the state is under special attention from all subjects of economic activity. The criminal attractiveness of the economic sphere, the state’s promise to improve the economy and its versatile support raise the question of the content of the social and legal conditionality of the criminalization of socially dangerous acts committed in the securities market. The social and legal conditionality of socially dangerous activities is a very important criminal law and criminological institution. In the Russian Federation, given the unfriendly behavior on the part of foreign participants in the international securities market, it has its own characteristics. The fight against acts that encroach on the established procedure for the circulation of securities, which are deeply latent and entail serious economic losses for bona fide participants in the securities market, in a difficult economic situation, should be one of the priorities of modern criminal policy. The level of organization of these crimes is growing, as well as the increasing use of digital and virtual technologies in their commission.
 Countering crimes committed in the securities market should be based on increasing the level of interaction between entities related to the activities of the securities market and the application of preventive organizational and legal and technical measures, including the criminal law format, based on the criteria for the social and legal conditionality of the criminalization of acts.

CRIME – BETWEEN CONCEPT AND DEFINITION IN THE EUROPEAN UNION

The present paper presents itself as a comparison between criminal legislation that exist within the EU territory, as well as a theoretical analysis of some criminal law institutions which entails reverberations in the criminal procedural law as well. But these follow-ups go beyond these aspects. 
 The theoretical steps that were assumed by this paper also knows profound practical implications, thus going beyond the abstract realm of theory and into practice, proving once again how important it is to posses the neccesary knowledge when it comes to compared law and not only that, but also the importance of that knowledge.
 The legislator cannot and should not remain indifferent regarding the signaled situations alongside this paper thus imposing the need to straighten, where neccesary, the impossible or contradictory situations.

Back to the future: the criminal legal dimension

In the context of reforming legal policy aimed, on the one hand, at weakening criminal repression, and on the other hand at taking into account modern conditions of martial law, there is a need to increase the effectiveness of the application of the provisions of the Criminal Code (CPC) of Ukraine. As you know, numerous changes are made to the Criminal Code of Ukraine (currently more than a thousand changes and additions), which are not always logical and adequate to the real social circumstances of life [1]. Reforming the system of criminal legislation requires a complex scientific analysis, including in the historical aspect. And this is logical, since modern institutions of criminal law are formed according to the principle of continuity and repetition. Therefore, an objective study of the evolution of criminal liability legislation will contribute to the improvement of the provisions of the Criminal Code of Ukraine.

Comparative Analysis of Recidivism and Other Types of Multiple Crimes in the Criminal Law of the Russian Federation

Domestic criminal legislation today is in need of revising some of the provisions relating to the forms of multiplicity of crimes. These provisions are of particular importance in the framework of the process of qualification of crimes, including when choosing by the judiciary the rules for imposing criminal punishment. At the same time, increased attention should be paid to the process of qualifying the recidivism of crimes, since its use leads to aggravation of criminal punishment. The main purpose of the work is to analyze domestic legislation in order to delimit the recidivism of crimes from related institutions of criminal law. As part of the study, the main norms of criminal law devoted to the recidivism of crimes, as well as other similar institutions of criminal law, were studied in order to identify problematic points of contact. Also, an analysis of judicial practice was carried out to identify problems in the qualification of crimes with signs of recidivism. Based on the results of the work, it was concluded that it is necessary to revise some provisions of the criminal legislation of the Russian Federation in terms of delimiting the recurrence of crimes from related institutions. Thus, it is proposed to introduce a legal definition of the totality of sentences in the Criminal Code of the Russian Federation, which in practice is often confused with the institution of recidivism, which negatively affects the process of qualifying criminal acts. It is also possible to single out the rules for imposing punishment in the event that a person who has a criminal record for committing a crime commits a repeated crime, if such an act does not contain recidivism-forming signs (for example, the commission of an intentional crime by a person in the presence of an outstanding or unexpunged conviction that does not form a recidivism of the crime).

The genesis of Russian legislation on the loss of a person or an act of public danger committed by him

The article provides a historical and legal analysis of the provisions of Russian legislation on the loss of public danger by a person or an act committed by him, which formed the phenomenon of Russian criminal law, called a change in the situation. The author comes to the conclusion that the social relations associated with the loss of a person or an act of public danger committed by him are due to historical development. The first provisions are found in such normative legal acts as the Judicial Code of 1497, the Cathedral Code of 1649, the Judicial Code of 1550. The studied legislative experience contributed to the establishment of the legal nature of the change in the situation in the composition of various institutions of criminal law.