Qualification Problems Research Articles

Problems of qualification of murder by perfect group methods (item "G" part 2 of article 105 of the Criminal Code)

Subject of research: is the criminal law prescriptions providing for responsibility for group methods of murder. In this regard, the article considers the problems of qualification of murders committed as part of a group, by a group of persons by prior agreement and by an organized group.
 Purpose of research: is to improve law enforcement practice in terms of the qualification of murders committed by various group methods.
 Methods and objects of research: the methodological basis of scientific research is the dialectical method used in conjunction with instrumental methods of cognition.
 Main results of research: 1) the Supreme Court of the Russian Federation differentiated the infliction of death as part of a group into two methods of murder: joint infliction of death and causing death as a result of the addition of a second participant, 2) the resolution formulated two rules for qualification as part of a group of persons by prior agreement: in the form of co-execution and murder with the distribution of roles, 3) the highest court recommends to carry out the qualification of murder as part of an organized group as a co-execution, which does not comply with the qualification rules, formulated in Parts 3, 4, 5 of Article 34 of the Criminal Code of the Russian Federation.

Problems of Criminal Law Regulation and Qualification of Acts Committed Using Electronic Means of Payment

The article presents an analysis of the provisions of the criminal law providing for responsibility for the theft of funds in a bank account and electronic money. Special attention is paid to the problems of qualifying deception as a method of committing fraud using electronic means of payment, its difference from deception, which can be used to secretly steal electronic funds. The article reveals the need to formulate the concept of deception in a crime under Art. 159.3 of the Criminal Code of the Russian Federation. The topical issues of qualification of fraud using electronic means of payment are investigated, taking into account changes in the Criminal Code of the Russian Federation and the wording of the resolution of the Plenum of the Supreme Court of the Russian Federation. The analysis of judicial practice of various subjects of the Russian Federation on the qualification of crimes using payment cards is carried out. The main problems of qualification of thefts, special elements of fraud, other related elements of crimes, for which electronic means of payment are used, are considered. It is concluded that there is no consensus among lawyers and law enforcers on the qualification of theft using payment bank cards, which leads to disparate judicial practice on the crimes in question. Proposals are put forward to solve the identified problems. A forecast is made about an increase in the number of crimes using electronic means of payment. The legislator is invited to develop a unified approach in describing the signs of crimes committed with the help of modern computer technologies, and law enforcement agencies to develop relevant methods for preventing, detecting and counteracting them, as well as to develop a unified approach to the qualification of these crimes.

Responsibility for the rehabilitation of Nazism (Article 354.1 of the Criminal Code of the Russian Federation): the composition of the crime and the discussion around it

The subject of the study is the corpus delicti provided for in Article 354.1 of the Criminal Code of the Russian Federation (Rehabilitation of Nazism), and the judicial practice of its application. The purpose of the study was: substantiation of the need to consolidate this article in the Criminal Code of the Russian Federation; identification of problems of qualification of this crime by courts based on judicial practice; proposals for their resolution and delineation from related crimes, development of recommendations for optimizing the legal norm. When writing the article, general, general scientific, private scientific and special research methods were used. Turning to the debatable issue of the need to criminalize this act, the authors cite various points of view regarding the appearance of this article in the Criminal Code of the Russian Federation, note the inherent shortcomings of the legal norm itself. Particular attention is paid to the categorical apparatus of the article, terminology, and delineation of the crime in question from other crimes. The problem of the location of this article in a special part of the Criminal Code of the Russian Federation is considered separately. The main conclusion that the authors came to as a result of the study is the need for this memorial law in the criminal law of the Russian Federation, as one of the factors of ensuring the security of the state. The shortcomings of the legal technique of the article under consideration are revealed, ways of solving them are proposed, the position on the inclusion of Article 354.1 of the Criminal Code of the Russian Federation in Chapter 29 of the Criminal Code of the Russian Federation (Crimes against the foundations of the constitutional system and state security) is substantiated. Practical measures aimed at optimizing the effectiveness of this criminal law norm are proposed.

Problems of Qualification of an Administrative Offense Provided by part 1 of Article 20.20. of the Code of the Russian Federation on Administrative Offenses

The object of the study is the public relations arising between a police officer and a person brought to administrative responsibility for committing an administrative offense provided for in part 1 of Article 20.20 of the Code of Administrative Offenses of the Russian Federation. The subject of the study was the legal norms contained in Part 1 of Article 20.20 of the Code of Administrative Offences of the Russian Federation. The proposed article analyzes the composition of an administrative offense provided for in part 1 of Article 20.20. of the Code of the Russian Federation on Administrative Offenses and law enforcement practice in cases of this category. The purpose of the work was to formulate, based on the analysis of theoretical provisions and law enforcement practice, proposals and recommendations for improving police activities in the qualification of an administrative offense provided for in part 1 of Article 20.20 of the Code of Administrative Offenses of the Russian Federation.

Some problems of qualification of crimes related to suicide

This article shows some of the problems that arise in the qualification of crimes related to suicide. These include: the definition of the form of guilt as part of the incitement to suicide; the moment of the end of the inclination to commit suicide; the differentiation of the main components of the incitement to suicide and the inclination to commit suicide, depending on the nature of the threat, etc. The ways of their solution are proposed, in particular, the opinion is defended that committing suicide is possible only with intent (direct or indirect), a careless form of guilt is excluded, since this contradicts the dangerous ways of committing it; it is proved that the moment of the end of the inclination to commit suicide is inextricably linked with the moment of manifestation in some form of suicidal behavior of the victim under the influence of illegal actions of the perpetrator.

CHILD LIFE PROTECTION: PROSPECTS FOR IMPROVING UKRAINIAN LEGISLATION

Based on the analysis of both scientific works dedicated to the issues of maternal infanticide and specific provisions of criminal legislation in foreign countries aimed at protecting children’s lives, a set of new insights has been obtained. These insights enable the development of a comprehensive set of measures aimed at protecting the lives of children. 
 As the analysis has shown, in recent years, a number of publications have been published aimed specifically at improving criminal legislation, namely Article 117 of the Criminal Code of Ukraine, including the following works: “Criminal liability for the murder of a newborn child: a comparative legal aspect” (Musychenko O. M., Verbytskyi O. S., 2019), “Current problems of qualification of the murder of a mother of her newborn child” (Zhmur Yu. M., Hotsuliak O. O., 2020), Intentional murder by a mother of her newborn child: controversial issues of qualification. Marysiuk K., Druk S., 2020).
 However, many problems remained unresolved, primarily regarding the qualification criteria, the moment of determining the beginning of a child’s life, the age limit at which criminal liability for this type of crime arises, and other issues.
 Preventive measures that will prevent the murder of children are an important area, as they are the most vulnerable part of people. Since human life, including the life of an unborn and newborn child, is realized through the system of criminal law, we consider it necessary, based on the studied foreign legislation, to develop a set of regulations that will allow for the proper protection of the life of a child and bring to justice all persons who facilitate the commission of this type of crime or encourage the mother to commit criminal acts. 
 Given the experience of protecting the life of a child in foreign countries, it is important to remember that the path of persuasion is not the path of prohibition, but the path of persuasion. Of course, persuasion plays an important role in a person’s life, but it is not always effective. As practice shows, if a woman decides to get rid of her unborn child, she will actively do so, both during pregnancy and after birth. Such women will do everything possible to get rid of their newborn child. Therefore, we consider it necessary to take into account the German legislation, which regulates at the legislative level the issues that provide for a number of measures aimed at counseling pregnant women in difficult conflict situations and in need of social support. Also, to increase responsibility for crimes aimed at taking the life of a child.
 Analyzing the draft of Criminal Code of Ukraine, we came to the generalized conclusion that the beginning of human life does not begin at the moment of physical birth, but much earlier. This conclusion is confirmed by a number of provisions of foreign countries, even those where the murder of a newborn child is a privileged crime.
 Therefore, the comparative legal analysis of the criminal laws of foreign countries that provide for liability for taking a child’s life allows us to actualize the issues which, in our opinion, will form the basis for further research and improvement of legislation, and thus will improve the activities of judicial, investigative and other bodies, which will generally lead to better protection of human rights.

Murder of Two or More Persons: what did the Supreme Court Mean?

The article is devoted to the problem of excessive qualification for multiple homicide crimes. The author shows the evolution of the attribute “murder of two or more persons”, carries out its correlation with related circumstances aggravating criminal liability, explores controversial issues of criminal legal assessment of attempted murder and murder under aggravating circumstances as independent acts.In conclusion, a new version of the provisions of the Plenum of the Supreme Court of the Russian Federation regarding the murder of two or more persons as a completed crime is proposed.

Financing of budgetary institutions: actual problems of legal qualification of the terminological apparatus

The article deals with the problems of legal qualification of key concepts in the field of financing of budgetary institutions. The conclusion is made about the public legal essence of the term "financing", the criticism of theoretical approaches to its broad understanding is given. Approaches to understanding the term "extra-budgetary sources of financial support" are analyzed, a legal gap in their classification is established. A position has been formed on the relationship between the concepts of "entrepreneurial activity" and "income-generating activity" in the context of their implementation by a budgetary institution.

Искусственное разделение единого административного правонарушения лицензионных требований в сфере управления многоквартирными домами

The paper deals with the problem of qualification and artificial division of a single administrative offense related to the presence of a debt to the public utilities suppliers by a managing company amounting double average monthly accrual when implementing the entrepreneurial activities on the management of apartment buildings with a gross violation of license requirements. The paper reveals the elements of administrative offense provided by part 3 of Art. 14.1.3 of the Code of the Russian Federation on Administrative Offenses. The author pays the particular attention to the analysis of small, but critically important judicial practice. Often the positions of regional courts contradict the positions of the RF Supreme Court and the general principles of administrative law. A problem of artificial division of a single offense into several independent ones was identified, since the disposition of part 3 of Art. 14.1.3 of the Code of the Russian Federation on Administrative Offenses is formulated inaccurately. Failure to fulfill the obligation for timely mutual settlements with a resource supplying organization may be erroneously qualified as several offenses, depending on the number of suppliers to whom the debt arose, and depending on the period of occurrence of such debt. Such an approach to law enforcement is found among the prosecution and housing supervision authorities. This problem leads to the repeated application of administrative punishment, when a single offense is qualified as several. The study identified general regularities in the approaches of superior courts, starting from the cassation level. These regularities allow determining the more precise conditions for qualifying gross violations of license requirements in the sphere of housing and utilities infrastructure in accordance with part 3 of Article 14.1.3 of the Code of the Russian Federation on Administrative Offenses.

Actual problems of qualification of abuse of authority by a private detective or a private security guard

Actual problems of qualification of abuse of authority by a private detective or a private security guard

Laboratories for Organizing People: Selected Essays on Art and Byt

Laboratories for Organizing People: Selected Essays on Art and <i>Byt</i>

Роль судебных решений в преодолении неопределенности нормативного регулирования увольнения за прогул

On the basis of current legislation and judicial practice, the problems of regulatory regulation and the courts position on the issue of dismissal of an employee at the initiative of the employer under subparagraph “a” of paragraph 6 of part 1 of Chapter 81 of the Labor Code of the Russian Federation are considered. The study relevance was substantiated, its methodology was characterized (such research methods as comparative legal, formal legal, as well as analysis, synthesis, system method were used). The definition of absenteeism given in the Labor Code of the Russian Federation is considered, the main problems of qualification as absenteeism of the absence of an employee in the workplace are highlighted. The courts positions are analyzed on the issue of whether a break for meals and rest is included in the definition of absenteeism and whether this break interrupts the continuous absence of the employee from the workplace. It is substantiated that the current legislation does not contain an exhaustive list of reasons for determining the validity of an employee’s absence from the workplace. Based on the analysis of judicial practice, a number of reasons are identified that the courts recognize as valid, and the ambiguity of the legal positions of the courts on this issue is also shown. It is concluded that in conditions of legal uncertainty, it is the courts that become the subject that fills in the gaps in the legislation in relation to specific cases. The main results of the study can be applied in the future in law enforcement practice, as well as in the teaching of legal disciplines.

The problem of qualification of the objective side of an administrative offense under Article 19.1 of the Administrative Code of the Russian Federation (arbitrariness)

The problem of qualification of the objective side of an administrative offense under Article 19.1 of the Administrative Code of the Russian Federation (arbitrariness)

Некоторые проблемы квалификации преступлений, связанных с корпоративными захватами (по материалам судебной практики). Часть 2

The article examines certain problems of applying criminal law in the field of countering “raider takeovers”. A brief analysis of the dispositions of part one of article 170.1 and part one of article 185.5 of the Criminal Code, as well as parts 4 and 5 of article 14.25 of the Code of Administrative Offenses of Russia is provided. Attention is drawn to certain shortcomings in the design of crimes and contradictions that arise in law enforcement activities. The judicial practice in criminal cases considered under these articles in various regions of Russia is summarized, and excerpts from court verdicts and judicial acts of the appellate and cassation instances are given. The problems of qualification of socially dangerous attacks committed with the aim of seizing control of organizations, and their competition with related crimes and administrative offenses are touched upon. The points of view of some scientific and practical workers on the topic are given and the author’s personal position on solving the problems that have arisen is expressed in order to avoid mistakes in law enforcement practice.

Problems of qualification of crimes infringing on the electoral rights of Russian citizens

Problems of qualification of crimes infringing on the electoral rights of Russian citizens

Rape committed by military servants of the aggressor state: problems of criminal-legal qualification.

Rape committed by military servants of the aggressor state: problems of criminal-legal qualification.

Некоторые проблемы квалификации преступлений против безопасности движения и эксплуатации водного транспорта, связанных с оказанием услуг ненадлежащего качества

В статье анализируются вопросы, связанные с уголовной ответственностью за оказание услуг ненадлежащего качества в сфере водного транспорта. Поскольку понятие транспорта (в том числе водного) в науке о праве не определено, уголовно-правовая квалификация транспортных преступлений существенно осложняется. Кроме того, предлагается внести изменение в Постановление Пленума Верховного Суда Российской Федерации от 25.06.2019 № 18, связанное с рассмотрением в судебной практике дел о преступлениях, предусмотренных ст. 238 УК РФ, в части наличия угрозы для здоровья потребителя любой степени тяжести. The article analyzes issues related to criminal liability for the provision of services of inadequate quality in the field of water transport. Since the concept of transport (including water) is not defined in the science of law, the criminal legal qualification of transport crimes is significantly complicated. In addition, the author proposes to amend the Resolution of the Plenum of the Supreme Court of the Russian Federation no. 18 dated 25 June 2019, related to the consideration in judicial practice of cases of crimes under Article 238 of the Criminal Code of the Russian Federation, in terms of the presence of a threat to the health of the consumer of any severity.

Risk analysis of management of water systems in the Russian Federation

The management of the water management complex is based on the analysis of a large number of processes developing in systems that are techno-natural in nature, on the one hand, and in complex socio-economic systems affecting the whole society as a whole, on the other. The management methods implemented in practice today are based mainly on the analysis of the functioning of individual parts (individual processes) of the system, ideas about the processes under consideration are often not consistent, especially when it comes to technical and social systems. Regulatory management methods, including technical regulation, are considered separately. Socio-economic processes at different levels of temporal and spatial organization are investigated and predicted independently. At the same time, of course, regulatory legal knowledge is taken into account, but resource restrictions may fall out or be ignored, society is immune to instructions and recommendations lowered from above, legal nihilism takes place, the problem of qualification of decision-makers arises, etc.Certain possibilities for analyzing such situations are provided by risk theory methods. The purpose of the article is to analyze the risks arising at various stages of justifying water management measures, from design to strategies for the development of the industry as a whole. In particular, traditional methods of engineering calculations are considered, which ensure a given level of reliability of the designed water construction facilities in relation to hazardous impacts (loads), which are based on the concept of design probabilities. This approach provides a normative level of reliability, but does not guarantee the economic optimality of decisions made, is insufficient to implement the social functions of measures and structures, and is difficult to analyze environmental problems. Obtaining quantitative estimates of the parameters of structures and measures, carried out on the basis of probabilistic approaches, should be based at least on taking into account the possible consequences of decisions taken, as well as on damage assessments expressed in the form of relevant risks.

Qualification of Violations of Antitrust Laws in Parallel Imports of Goods: a Comparative Legal Aspect

The practice of the antimonopoly authorities of Russia and foreign countries in relation to violations in the field of parallel imports of goods has been studied. The problems of qualification of this type of offenses (including in the law enforcement practice of a number of foreign states) in terms of vertical agreements and abuse of dominant position are identified. The authors conclude that the positions of the antimonopoly authorities of Russia and a number of foreign countries are similar on the issue of abuse of the right of legal monopolies for trademarks: a legal monopoly for trademarks should not be a basis for abuse of the right by the right holder and restriction of the possibility of free movement of goods and services marked with trademarks. According to the authors, it is advisable to use the experience of foreign countries when qualifying violations in the field of parallel imports to Russia.

Тopical Problems of Qualification for Occupying the Highest Position in a Criminal Hierarchy

A legislative initiative on toughening the responsibility for crime bosses was introduced in early 2019. Thus, the Federal Law No 46 “On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation Regarding the Counteraction to Organized Crime” was adopted April 1, 2019. The explanatory note to the draft law specifies that a person occupying the highest position in a criminal hierarchy has numerous criminal links, which allow them to evade criminal liability, and this is their specific feature. Nevertheless, the research community is still actively debating Art. 210.1 of the Criminal Code of the Russian Federation (CC of the RF). In the current article, the authors examine topical problems of qualification, investigation, as well as the difficulties in establishing the person who occupies the highest position in a criminal hierarchy. They analyze the clauses of Art. 210.1 of the CC of the RF, and the positions of scholars regarding the specifics of determining such a status. Based on the conducted research, the authors conclude that it is necessary to improve Art. 210.1 of the CC of the RF, and state a need for adopting the thematic Decree of the Supreme Court of the Russian Federation to clarify key concepts contained in the article under consideration.