Qualification Problems Research Articles

Creation for the purpose of illegal use, distribution or sale of harmful software or technical means, as well as their distribution or sale (Article 361-1 of the Criminal Code of Ukraine): certain aspects and problems of criminal-legal qualifications

This article analyzes certain aspects and problems of the criminal legal qualification of offences under Article 3611of the Criminal Code of Ukraine, which provides for criminal liability for the creation with the purpose of unlawful use, distribution or sale of malicious software or hardware, as well as their distribution or sale. The author analyzes the existing case law and provides statistics based on 166 court verdicts according to the Unified State Register of Court Decisions. The results of this study revealed that only 4.22% of the total number of verdicts were acquittals, while 95.78% were guilty verdicts (of which 96.2% were plea bargains and 3.8% were denials). This raises doubts as to the quality and completeness of the consideration of this category of cases in court. The article examines the construction of the objective aspect of the criminal offence and offers the author’s own vision of the definition of certain forms of action, namely: whether the placement of malicious software in open or restricted access can be considered as transfer; whether it can be considered as distribution of malicious software if access to it is provided by the user through entering an IP address. Attention is also drawn to the need to define a unified methodology for identifying malware and formalize certain concepts. The absence of a unified approach to the definition of terms such as “malware” and “automated system” complicates law enforcement and causes heterogeneity in judicial practice. Particular attention is paid to the problem of qualification through malware identification tools, in particular, using the VirusTotal resource, which may lead to erroneous conclusions. The author emphasizes the need for a unified and sustainable approach to law enforcement by the courts. The author also focuses on specific measures which will improve the quality of law enforcement of the provision contained in Article 3611 of the Criminal Code of Ukraine and will contribute to the formation of a unified approach in the courts to the qualification and prosecution of persons who have committed an act under the above article.

Problems of qualification of torture and humiliating or inhuman treatment in domestic violence cases according to the practice of the general courts of Georgia

Annotation: In the practice of general courts of Georgia, the problem of qualification of crime is not a rare case. This especially reffers to crimes between which to draw a line is difficult. Among such cases are the crimes provided for by articles 1441 (torture)[1] and 1443 (humiliation or inhuman treatment)[2] of the Criminal Code of Georgia. It is important to separate them - from each other and from other crimes. The scientific article presents the criminal law cases of the domestic violence[3] category, in which the above-mentioned problem appeared and which were considered by all three courts of Georgia. [1] The first part of Article 1441 of the Criminal Code of Georgia – “Torture, i.e. exposing a person, or a third person to such conditions or treating him/her in a manner that causes severe physical pain or psychological or moral anguish, and which aims to obtain information, evidence or confession, threaten or coerce, or punish the person for the act he/she or a third person has committed or has allegedly committed“. [2] The first part of Article 1443 of the Criminal Code of Georgia – “Humiliating or coercing a person, placing him/her in an inhuman, degrading and humiliating condition, which inflicts severe physical and psychological suffering on him/her”. [3] Article 111 of the Criminal Code of Georgia – “A domestic crime shall mean a crime under Articles 109, 115, 117, 118, 120, 126, 1331, 1332, 137-141, 143, 144-1443, 149-1511, 160, 171, 187, 253-2551, 3811 and 3812 of this Code, which is committed by one family member against another family member. Criminal liability for a domestic crime shall be determined according to an appropriate article of the Criminal Code of Georgia specified in this article, with reference to that article”. With the first part of the note of the same article – “For the purposes of this Code, the following persons shall be considered family members: a mother, father, grandfather, grandmother, spouse, person in an unregistered marriage, child (stepchild), foster child, foster carer (foster mother, foster father), stepmother, stepfather, grandchild, sister, brother, parent of the spouse, parent of the person in an unregistered marriage, spouse of the child (including the one in an unregistered marriage), former spouse, person who previously was in an unregistered marriage, guardian, custodian, supporter, person under guardianship and custodianship, beneficiary of support, as well as other persons that maintain or maintained a common household”.

Problems of qualification in receiving a bribe on the example of medical workers

Subject of research: norms of the criminal legislation of the Russian Federation devoted to bribery and the concept of an official, as well as clarifications of the Plenum of the Supreme Court of the Russian Federation on the qualification of certain crimes of corruption. Purpose of research: to give scientifically based proposals to eliminate the problem of qualifying the actions of a medical worker, including one who is the head of a structural unit of a medical organization, as receiving a bribe. Object of research: social relations arising in connection with the performance by a medical worker of his professional and official duties, which were studied using comparative legal, dialectical and analytical methods. Main results of research: a justification is proposed for the need to include in the Criminal Code of the Russian Federation a rule on liability for illegal remuneration of officials of healthcare institutions.

Features of criminal prosecution for intentional bankruptcy and for a combination of crimes with related compounds

The subject of this study is a criminal law regulating liability for intentional bankruptcy in relation to fraud, abuse of authority and embezzlement, as well as forgery of documents. The assessment of the competition of the elements of crimes related to intentional bankruptcy traditionally arises in practice in the vast majority of criminal cases considered by the courts. The problem of considering the issue of the correct qualification of the actions of the perpetrator, which led to the insolvency (bankruptcy) of the enterprise, is based on the presence of concomitant actions indicating signs of related crimes, as well as in the double accounting of one damage by several compositions. The purpose of this study, first of all, is to choose the distribution of aspects of competition, the totality and the general ratio of crimes related to intentional bankruptcy. Such an analysis of the constructions of criminal law norms will ensure the identification of the main differentiating factors in the qualification of the actions of the perpetrator that led to insolvency (bankruptcy). The main method in this study is a comparative legal analysis of competing crimes with reference to judicial practice. The novelty of this study lies in the need to study not only related elements of the crime, but also the introduced novel, which expanded the construction of Article 196 of the Criminal Code of the Russian Federation by introducing qualifying compounds capable of displacing some competing norms in practice. On the basis of which, the issue of the subsequent displacement of adjacent compounds by introducing appropriate qualifying features in Article 196 of the Criminal Code of the Russian Federation is considered. Thanks to this study, the actual problem of the correct qualification of the actions of the perpetrator in the presence of competitive compositions has been identified. Based on the results of the work done, proposals have been put forward for further improvement of legislation regulating the procedure for bringing to criminal responsibility for committing a crime under Article 196 of the Criminal Code of the Russian Federation and in case of competition with related offences under Articles 159, 160, 201, 327 of the Criminal Code of the Russian Federation.

Challenging of the debtors transactions in bankruptcy proceedings

In this article, the focus is directed to identifying legal concerns of challenging of the debtors transactions in bankruptcy proceedings. The issues of definition of transaction which is subjected to challenging in bankruptcy, the particularities of such acts as abandonment of a claim and conclusion of an amicable agreement are identified and addressed; the specificity of challenging of a chain of transactions in bankruptcy and particular acts on the implementation of the contract are determined. The problem of dual qualification of transactions, which are challenging under special bankruptcy grounds and in accordance with general rules of Civil Code of the Russian Federation about invalidity of transactions is highlighted in the article. Methods of formal logic (analysis, synthesis, deduction, induction), methods of systematic research and technical-legal analysis, dialectical and formal-legal methods make it possible to the author to identify theoretical and practical legal problems related to challenging of debtors transactions and the existing approaches to their resolution. It's concluded that broad interpretation must not be applied in cases which are not connected to bankruptcy. The opportunity of challenging of acts that are provided by Bankruptcy Law must not be applied to legal relations which are not complicated by bankruptcy. Challenging of a chain of transactions requires a certain approach (dual qualification). We mustn't limit to an assessment of particular execution without the scope of the whole legal relations between parties during challenging acts of execution of the contract. If the transaction has signs of the invalidity under special bankruptcy grounds, its qualification by articles 10, 168 of Civil Code of The Russian Federation is unacceptable. But dual qualification during challenging in bankruptcy is acceptable if we apply provisions of Bankruptcy Law and article 170 of Civil Code of the Russian Federation.

Topical Problems of Qualification of Certain Types of Crimes

The scientific review provides answers to the questions of judges received by the Russian State University of Justice concerning the qualification of certain crimes: group crimes with a person who is not subject to criminal liability by virtue of age or insanity; the combination of crimes provided for by paragraph “b” Part 4 of Article 132 and “b” Part 3 of Article 242 of the Criminal Code of the Russian Federation; embezzlement by means of a loan with the use of the victim’s cell phone; determination of the size of alcohol-containing products; attempted sale of narcotic drugs; a combination of crimes under Аrticles 264.1 and 264.3 of the Criminal Code of the Russian Federation; cumulative offenses under Аrticles 322.1 and 322.2 (322.3) of the Criminal Code of the Russian Federation.

What to Trust When We Trust Artificial Intelligence (Extended Abstract)

What to Trust When We Trust Artificial Intelligence Abstract: So-called “trustworthy AI” has emerged as a guiding aim of industry leaders, computer and data science researchers, and policy makers in the US and Europe. Often, trustworthy AI is characterized in terms of a list of criteria. These lists usually include at least fairness, accountability, and transparency. Fairness, accountability, and transparency are valuable objectives, and they have begun to receive attention from philosophers and legal scholars. However, those who put forth criteria for trustworthy AI have failed to explain why satisfying the criteria makes an AI system—or the organizations that make use of the AI system—worthy of trust. Nor do they explain why the aim of trustworthy AI is important enough to justify devoting resources to achieve it. It even remains unclear whether an AI system is the sort of thing that can be trustworthy or not. To explain why fairness, accountability, and transparency are suitable criteria for trustworthy AI one needs an analysis of trustworthy AI. Providing an analysis of trustworthy AI is a distinct task from providing criteria. Criteria are diagnostic; they provide a useful test for the phenomenon of interest, but they do not purport to explain the nature of the phenomenon. It is conceivable that an AI system could lack transparency, accountability, or fairness while remaining trustworthy. An analysis of trustworthy AI provides the fundamental features of an AI system in virtue of which it is (or is not) worthy of trust. An AI system that lacks these features will, necessarily, fail to be worthy of trust. This paper puts forward an analysis of trustworthy AI that can be used to critically evaluate criteria for trustworthy AI such as fairness, accountability, and transparency. In this paper we first make clear the target concept to be analyzed: trustworthy AI. We argue that AI, at least in its current form, should be understood as a distributed, complex system embedded in a larger institutional context. This characterization of AI is consistent with recent definitions proposed by national and international regulatory bodies, and it eliminates some unhappy ambiguity in the common usage of the term. We further limit the scope of our discussion to AI systems which are used to inform decision-making about qualification problems, problems wherein a decision-maker must decide whether an individual is qualified for some beneficial or harmful treatment. We argue that, given reasonable assumptions about the nature of trust and trustworthiness, only AI systems that are used to inform decision-making about qualification problems are appropriate candidates for attributions of (un)trustworthiness. We then distinguish between two models of trust and trustworthiness that we find in the existing literature. We motivate our account by highlighting this as a dilemma in in the accounts of trustworthy AI that have previously been offered. These accounts claim that trustworthiness is either exclusive to full agents (and it is thus nonsense when we talk of trustworthy AI), or they offer an account of trustworthiness that collapses into mere reliability. The first sort of account we refer to as an agential account and the second sort we refer to as a reliability account. We offer that one of the core challenges of putting forth an account of trustworthy AI is to avoid reducing to one of these two camps. It is thus a desideratum of our account that it avoids being exclusive to full moral agents, while it simultaneously avoids capturing things such as mere tools. We go on to propose our positive account which we submit avoids these twin pitfalls. We subsequently argue that if AI can be trustworthy, then it will be trustworthy on an institutional model. Starting from an account of institutional trust offered by Purves and Davis, we argue that trustworthy AI systems have three features: they are competent with regard to the task they are assigned, they are responsive to the morally salient facts governing the decision-making context in which they are deployed, and they publicly provide evidence of these features. As noted, this account builds on a model of institutional trust offered by Purves and Davis and an account of default trust from Margaret Urban Walker. The resulting account allows us to accommodate the core challenge of finding a balance between agential accounts and reliability accounts. We go on to refine our account, answer objections, and revisit the list criteria from above as explained in terms of competence, responsiveness, and evidence.

Obstruction of the lawful activities of the Armed Forces of Ukraine and other military formations vs. complicity in evasion of military service during mobilization: problems of qualification in judicial practice

The article analyzes the final verdicts delivered in 2024 and posted in the Unified State Register of Court Decisions, in which the actions of the accused are qualified under Article 114-1 of the Criminal Code of Ukraine. The author identifies five variants of the defendants’ unlawful behavior which were qualified as obstruction of the lawful activities of the Armed Forces of Ukraine, namely, creation and/or administration of channels in Internet messengers for posting information on the delivery of summonses by employees of the Territorial Center for Manning and Social Training; drafting and issuance of knowingly false official documents which served as the basis for assigning a person a relevant disability group and which excluded the registration of vehicles for military use; issuing to other persons certificates, chevrons of membership in a public organization and enrollment in a volunteer military unit, which did not exempt such persons from military service; enrollment in a full-time higher education institution without relevant military registration documents for money and issuance of a certificate of enrollment; participation in blocking a vehicle in which employees of the Territorial Center for Recruitment and Social Training carried out mobilization activities on the territory of the. It is stated that most of the cases qualified under Article 114-1 of the Criminal Code of Ukraine are subject to criminal law assessment as complicity in evasion of conscription for military service under mobilization (Article 336 of the of the Criminal Code of Ukraine) or under other articles of the Special Part of this Code which provide for liability for the sole commission of the relevant crimes. The author identifies and characterizes the features of the object of the crime under Article 114-1 of the Criminal Code of Ukraine, as well as the signs of obstruction of lawful activity as a socially dangerous act.

Illegal sale of narcotic drugs using electronic information resources: problems of qualification

Illegal sale of narcotic drugs using electronic information resources: problems of qualification

War crimes: problems of definition and qualification

War crimes: problems of definition and qualification

A Field Research on the Problems Experienced by Opticians and Optical Stores

The optician profession forms an important bridge between ophthalmologists and patients in the treatment of eye diseases and refractive errors. Optical glasses, frames, contact lenses and other devices are provided and applied by opticians in accordance with prescriptions written by ophthalmologists. However, the optician profession and institutions in Turkey face various problems. This research aims to identify and analyze issues such as education and qualification problems, regulatory difficulties, economic difficulties and adaptation to technological innovations experienced by the optician profession and institutions in Turkey. By evaluating the opinions and expectations of different stakeholders, solution suggestions and strategies will be developed to make the profession more efficient and effective. Thus, it is aimed that the results of the study will contribute to the future development of the optician profession and its institutions.

САМОВІЛЬНЕ ЗАЛИШЕННЯ ВІЙСЬКОВОЇ ЧАСТИНИ АБО МІСЦЯ СЛУЖБИ: ПРОБЛЕМНІ АСПЕКТИ КВАЛІФІКАЦІЇ

The authors of the article emphasize that, given the contemporary conditions in Ukraine necessitating legislative changes, particularly those concerning the reinforcement of criminal liability for offenses committed during a state of war, it is also crucial to undertake a scholarly analysis of legislative novelties. This analysis can substantiate their feasibility or, conversely, identify legal issues they may engender, such as conflicts, gaps, competition between legal norms, and so forth. It is noted that military criminal offenses are outlined in Section XIX of the Special Part of the Criminal Code of Ukraine, which contains the definition of military criminal offenses. The societal danger of these offenses is justified by the threat they pose to the effectiveness of the Armed Forces of Ukraine and other military formations created in accordance with Ukrainian laws, which are a guarantee of maintaining peace, national security, and territorial integrity. The article underscores the importance of both a properly organized system of law enforcement agencies and a system of legal norms establishing grounds for holding guilty individuals accountable. The authors focus on studying the legislative provisions regarding desertion in the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses. From the analysis of judicial practice, it is evident that this type of military offense is the most widespread within the ranks of the Armed Forces of Ukraine. The relevance of the article lies in the necessity to analyze the amendments made to the relevant legislative acts. For example, new features of administrative and criminal liability for AWOL. Based on the research of criminal law scholars and lawyers, several problems related to the qualification of this type of military offense are presented. Drawing from the analysis of the outlined qualification problems of AWOL under Ukrainian law, the article discusses methods to overcome them. Key words: military offenses, criminal liability, Criminal Code of Ukraine, Armed Forces of Ukraine, military personnel, state of war.

Reliable Knowledge as an Element of the Design of a Criminal Law Norm: problems of qualification

Based on the study of the nature of reliable knowledge as a special construct included in many crimes, the peculiarities of the interpretation of the criminal law containing a reference to knowledge and the problems of qualifying crimes involving the dissemination of knowingly false information are identified. In the context of digitalization of the communication space and the emergence of countless sources of information, a person can spread false information under the influence of delusion. Options are proposed for changing some criminal law norms in order to reduce the possibility of objective imputation when qualifying acts committed in emergency situations, in which it is difficult or impossible to verify the accuracy of information.

Holiganity committed with violence against citizens: problems of qualification

Subject of research: norms of criminal law establishing liability for hooliganism, for crimes against the person committed out of hooligan motives, as well as explanations reflected in the Resolutions of the Plenum of the Armed Forces of the Russian Federation dated November 15, 2007 № 45, dated December 27, 2002 №. 29, dated December 4, 2014 № 16. Purpose of research: to reveal the understanding of «violence» within the framework of Art. 213 of the Criminal Code of the Russian Federation, on the basis of which to formulate rules for qualifying the imputation, in aggregate or without violent hooliganism, of crimes against the person committed out of hooligan motives. Methods and objects of research: the main methods used are the formal logical method, methods of analogy and generalization, as well as comparative legal and formal legal research methods. Main results of research: proposals were formulated to improve the provisions of the current Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2007 № 45 «On judicial practice in criminal cases of hooliganism and other crimes committed from hooligan motives» in terms of the understanding of violence enshrined in paragraph «a» part 1 art. 213 of the Criminal Code of the Russian Federation, as well as the rules for qualifying this crime in combination or without crimes against the person committed out of hooligan motives.

The Problems of Qualification of Theft Non-Cash Funds

Introduction: the relevance of the research topic is due to the need to consider the problems of qualification of theft non-cash funds. The paper explores the question of how to qualify the theft of non-cash funds, what is the difference between their object of theft and the object of theft in the traditional sense. The purpose of the work is to substantiate the most correct and accurate qualification of theft of non-cash funds, to distinguish the fraud components from each other and from other related components. Methods: the scientific analysis of theft components is carried out using ontological and axiological approaches, the method of system analysis, as well as the comparative law method. As a result of the research, the author concludes that the inclusion of Article 159.3 in Chapter 21 of the Criminal Code of the Russian Federation and its new version are justified and contribute to the protection of public relations in the field of ownership of non-cash funds and property rights.

BEZORILIK: HUQUQNI QO‘LLASH MUAMMOLARI

This article examines the qualification problems that are faced today during the investigation and preliminary investigation of criminal offenses, specific aspects of the proof process and aspects of legal regulation of these issues, the identity of the victim, his rights, and other issues related to the subject. The article also contains a dispositional commentary on the crime of hooliganism, which provides a legal interpretation of the existing problems in the application of certain proposals as well as suggestions that their legal definition should be reflected in legislation. In accordance with Article 13 of the Law of the Republic of Uzbekistan dated August 8, 2023, DRU-860, “On anti-corruption expertise of normative legal acts and their drafts,” the proposal “expressed in demonstrative disregard for generally recognized rules of conduct,” which is also an aggravating circumstance of the crime of hooliganism, was noted as an indefinite proposal of discretionary powers in practice, as a legal solution to the problem, a scientific and legal definition of this proposal has been developed, which should be fixed in the explanatory part of Section 8 of the Criminal Code. The research used methods such as analysis, synthesis, induction, deduction, and comparative legal analysis. During the research, advanced foreign experience, scientific and theoretical views, and investigative and judicial practice were studied, as a result of which proposals and recommendations were developed for making appropriate amendments and additions to the Criminal Code of the Republic of Uzbekistan and other legislative and subordinate acts.

"HOOLIGANISM: CRIMINAL LAW QUALIFICATION PROBLEMS "

"HOOLIGANISM: CRIMINAL LAW QUALIFICATION PROBLEMS "

Conveyance of feature gradation semantics in modern Turkish

The aim of the article is to study the Turkish adjective from the point of view of a complex and systematic description of the means that serve to indicate the semantics of feature gradation. Having analyzed the works of Ukrainian Turkologists and representatives of various grammar schools in Turkey and in European countries, which focus on the adjective, we determined that most of them study certain features of the adjective structure or functioning in modern Turkish. Besides, means of denoting the feature manifestation intensity, particularly those having diminutive semantics, especially word-forming affixes that realize this meaning, also became the subject of the scientists’ research. At the same time, we did not record any work that deals with a holisticdescription of linguistic (grammatical, word-forming) means as a system that serves to denote the semantics of feature gradation, which determines the relevance of our research. In the present work, we set the task to carry out such a systematic description of these means and determine the features of their interaction within this system. Along with this, the paper discusses the general problems of qualification of the adjective as part of speech in the Turkish language and differentiation of its lexical and semantic classes. Within the framework of the study, we offer the description of the degrees of comparison of adjectives, the intensive adjective forms, the polyfunctional affix -ca/-ce, the word-forming affixes with diminutive and augmentative semantics as well as the pair words (lexical repetitions) and syntactic models of the implementation of feature gradation semantics. The methodological prerequisite of the study is the functional and semantic approach.

An Inchoate Crime in Criminal Law: Prospects of a Constructionist Approach

The paper considers the possibilities of solving some problems of crime qualification using the juridicalconstructionist approach. The focus of the legal analysis is on the structural features of a specific normative prescription of the criminal law with the peculiarities of the connections between its elements. First, the author shows how the application of different legal structures to similar facts of the case changes the legal assessment of what has been done from a completed crime through an attempt to commit it and to conclusions about the absence of a criminally punishable act. Second, the author discusses the issue of determining not only the moment of the legal completion of the crime, but also the moment of the legal beginning of the crime to find the boundaries between the preparation for the commission of a crime and the attempt to commit it. The author provides his understanding of the legal structure in criminal law, as well as its content. Using the example of judicial normative interpretation and law enforcement practice, the author proves that legal structures can change, despite the fact that the disposition of an article of a Special part of the Criminal Law may remain unchanged. According to the author, the main work on the description and modification of legal structures is carried out by the Supreme Court of the Russian Federation, including its Plenum. The paper demonstrates positive aspects of the constructionist approach in the legal analysis of an unfinished crime, as well as the difficulties that may be caused by it. For clarity, using the analysis of legal structures, the author elucidates approaches to the qualification of attacks on the life of two or more persons, when one victim was killed, and one or more other victims were not killed due to circumstances independent of the will of the perpetrator. In the process of this analysis, the author demonstrates the distinction between attempted murder of two or more persons and preparations for such a crime, and provides his considerations concerning decisions of the courts of appeal of general jurisdiction.

Legal qualification of the use of foul language at work: mobbing or petty hooliganism

The article is devoted to the problem of legal qualification of the use of foul language at work. Despite the fact that Ukrainian labour legislation was supplemented with anti-mobbing innovations at the end of last year, these innovations remain understudied, which leads to many problems in law enforcement. For example, one of the controversial issues is the distinction between the content of Articles 173 «Petty hooliganism» and 1735 «Mobbing (Baiting) of an Employee» of the Code of Ukraine on Administrative Offences.
 To gain a deeper understanding of the central topic of the study, the author analyzes the legal nature of such phenomena as mobbing in labour relations and petty hooliganism. In particular, the author examines their system of features through the prism of its understanding as a holistic and interconnected structure characterised by emergence and impossibility of the whole’s existence without its individual elements.
 In the course of writing this article, the author took into account the situational nature of the use of foul language in the workplace, and therefore proposed several options for resolving various incidents. In particular, the author considers situations in which: 1) an employee constantly uses foul language during communication at work solely due to a low level of speech culture; 2) an employee systematically humiliates the honour and dignity of a colleague by using foul language.
 In addition, the author’s position was expressed in the research paper that the concept of «public place» used in the wording of the disposition of Article 173 of the Code of Ukraine on Administrative Offences is generic in nature, while the term «place of work» is specific in relation to the previous one.
 The empirical basis of the study is the national regulatory legal acts (the Labour Code of Ukraine and the Code of Ukraine on Administrative Offences), as well as court practice.
 In general, this research article is intended to contribute to the improvement of the efficiency of application of the relevant legal provisions of labour and administrative legislation and fair consideration of cases of administrative offences.