Criminal Law Theory Research Articles

THE SUBJECT OF CRIME: THE PROBLEM OF ESTABLISHING AGE LIMITS OF CRIMINAL RESPONSIBILITY

Purpose: This article presents the authors’ analysis of the problem of determining the subject of a crime as a legal concept, and defining the legal characteristics of a person who has committed a crime by features that are necessary for criminal responsibility (individual, age, and responsibility). Methodology: The present study was based on a dialectic approach to the disclosure of legal phenomena using general scientific and private scientific methods. Considered the Convention on Rights of the Child1989; International Covenant on Civil and Political Rights "in 1966; and UN Standard Minimum Rules for Administration of Juvenile Justice. Result: It is noted that the theory of criminal law and criminal legislation of various legal systems, including Russia, associate criminal responsibility with the age of the subject of the crime. Based on the requirements of criminal law, the subject of a crime may not be any imputed person, but only having reached a certain age. Applications: This research can be used for universities and students in law. Novelty/Originality: In this research, the model of establishing age limits of criminal responsibility is presented in a comprehensive and complete manner.

Crimes Against the Sovereign Order: Rethinking International Criminal Justice

AbstractThe scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state's authority to punish crime assume the existence of connections between the state and either the criminal or the crime that are not always present in the international criminal context. Recognizing this gap, this Article introduces a new theory of what distinguishes international crimes from domestic crimes and justifies the unusual scope of international criminal jurisdiction. As this Article explains, international crimes are unique in the way they undermine international society's structure as a system of sovereign states.

Полемика о смертной казни и перспективы ее существования в современной России

The author attempts to argue the need to refuse such punishment as the death penalty in Russia. The arguments made by the proponents of the death penalty in Russian criminal law are critically assessed. Additional reasons confirm that the death penalty should be excluded from the criminal pun-ishment system. Recent relevant publications are analyzed. The emphasis is placed on the fact that more and more people support the abolition of the death penalty, notwithstanding the divergent views on this issue at least in the theory of criminal law. The author concludes that the death penalty is unacceptable in today’s capitalist democratic socie-ty. In the absence of the death penalty, life impris-onment will be the most severe punishment in the criminal punishment system, which to a greater extent will meet the needs of Russian society and ensure the implementation of all the purposes of punishment.

Bases para una reconstrucción estructural de los principios penales en el ámbito del control de constitucionalidad

La dogmática de los principios penales adolece de una reconstrucción normativa a partir de categorías estructurales. La propuesta de Atienza y Ruiz Manero sobre los enunciados jurídicos contiene un arsenal conceptual que resulta especialmente adecuado a la hora de realizar una taxonomía de los principios y límites penales. Esta reconstrucción resulta particularmente provechosa en el ámbito del control de constitucionalidad de las leyes penales, ya que, a partir del test de proporcionalidad, los derechos y bienes constitucionales son clasificados por parte de la doctrina y de la jurisprudencia constitucional comparada como principios o reglas. Por tanto, este estudio pretende sentar las bases teóricas y metodológicas de una reconstrucción estructural de los principios penales.

Fundamentals Without Foundations

This is a chapter in a forthcoming book, Exploring Justice in Extreme Cases: Criminal Law Theory and International Criminal Law (Cambridge University Press). In this chapter, I argue for a ‘coherentist’ approach to criminal law theory. Coherentism stipulates that we can make meaningful progress on mid-level problems without resolving ‘foundational’ questions. As humans in an uncertain universe, the best we can do is to try to reconcile the available clues and arguments. For example, we can discuss fundamental principles of a criminal justice system, without necessarily subscribing to one of the main foundational moral theories, and without determining which of those theories is the ‘correct’ one. By using the device of ‘mid-level principles’ (principles intermediate between practice and foundational theories), we can carry out fruitful analytical and normative work. For many readers, coherentism may at first sound too uncertain, superficial and non-committal -- like an invitation to ad hoc bricolage. Such objections underestimate both the rigour and ambition of the coherentist method. I will argue that the main objections to coherentism (eg lack of certainty) are actually objections to the human condition. I will strive to show that coherentism is more convincing and more reliable than foundationalist approaches, and also more transparent about the limitations of ethical deliberation. The coherentist approach accepts that our principles are human constructs, that our starting points are historically contingent, and that we have no guarantees of ‘correctness’. Nonetheless, it is important to try to determine whether institutions are just, using the best available methods that we have. I also argue that coherentism is the best explanatory and justificatory account of criminal law theory, i.e. the best theory of criminal law theory.

Проблемы социально-правовой обусловленности института судимости в законодательстве Таджикистана и России

The article deals with the problems of socio-legal conditionality of the criminal record as a complex phenomenon in the criminal legislation of Tajikistan and Russia. The author analyzes and reflects the arguments in favor of the existence of the institution of criminal record, and against it for each of which the author notes his vision. In addition, on the studied issue, empirical materials are provided, namely the results of the survey of respondents, statistics and examples from judicial practice. In conclusion, the author concludes that the institution of criminal record, with the exception of individual cases, is essential not only in the theory and practice of criminal and criminal-Executive law, but also in other branches of law. For this reason, he argues that it is imperative not only to keep this institution in the legislation of both countries, but also to continue to work on its further improvement

Ответственность за деяния, предусмотренные статьями 210 и 210.1 УК РФ

Article is devoted to the changes made to the Criminal Code of the Russian Federation by the Federal law of the Russian Federation of April 1, 2019 № 46-FZ on toughening of punishment for establishing a criminal organization or participation in it. Innovations concerned all parts of article 210, in particular criminal liability amplified (generally a penalty) and part 11 of article 210 appeared. Besides, the law entered new article 210.1 of the «Occupation of the highest situation in criminal hierarchy». Having analyzed statistics, only one fact of involvement of such person to criminal liability for establishing a criminal organization is elicited. Him was «thief in law» who carried out organizational and administrative functions concerning criminal community and its participants. One example of judicial practice by part 4 of article 210 of the Criminal Code of the Russian Federation «the person taking the highest position in criminal hierarchy», proves existence of difficulties at procedural proof. However these problems will not arise in the situation provided by article 210.1 as to prove that such person makes act it is not necessary. There is enough of fact that this person holds the highest position in criminal hierarchy. Meanwhile, noted edition of the law contradicts the theory of criminal law, regarding criminal prosecution only for criminal action.

The Method of Interpretation of Penal Norms in the International Context

Mr John Doe, a citizen of state X and a multimillionaire, has a serious heart problem. He needs an immediate transplant to survive. Unfortunately, the law of state X prohibits any kind of organ trafficking. Because of that fact, Mr Doe decides to travel to state Y, where such transactions are legal. What is more, under the provisions of Y’s law, it is allowed for a living person whose family is destitute to sell his or her organ and such a transaction could provide for the maintenance of the children of the donor until they become adults. Mr Doe finds such a person, a citizen of state Y, and makes a deal – he pays for euthanasia and transplantation and comes back to his country in good health. The above short story raises a question: “What shall state X do with Mr Doe upon his arrival?” Is everything correct? Can we, as a society, agree to such a patently criminal act which deserves condemnation? Should we try to fight them by domestic policy? Does the state have any authority over social situations that occur abroad? The answer to these questions is not simple and depends on factors specific to each situation. Further consideration contains the argumentation for the thesis that every state possesses wide competence to punish acts committed abroad. This competence is limited only by the duty of protection of values commonly respected internationally. This article presents a method of interpreting norms of national substantive criminal law in the international context, taking into account the achievements the theory of criminal law.

Promoting Equality Through Empirical Desert

According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices. This Article argues that these critiques are misplaced and overstated and that empirical desert theory can be safely relied on in criminal justice—and beyond. Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology. Moreover, empirical desert theory can do even better. This Article presents an innovative proposal to reconceptualize empirical desert theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination. It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections. Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them. In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.

Civil Claim in Criminal Proceedings From the Standpoint of Res Judicata in Different Areas of Law

The problems of a claim and a claim as a form of protection for a violated right have a fundamental significance not only in the traditional sense — for the civilistic areas of law - but, especially, for the theory of criminal, criminal procedure and penitentiary law. Economic aspects make it possible to consider a claim to be a preventative instrument of influencing lawbreakers. Procedural aspects of a claim show that it is effective for the observance of the principle of procedural economy. The criminological aspects of a claim lead to the conclusion regarding the necessity of taking into consideration the connections between different areas of law. The author proves that the value of criminal punishment should not be determined independently, but rather depending on the norms, institutions of criminal law and taking into consideration their interconnection and interdependence with the institutions of other areas of law. Such an approach makes it possible to conclude that the institute of claim, which is significant for interactions between different law areas, holds a special place in the legal sphere and acts as an important element of the crime prevention mechanism. It is a challenge for contemporary international and Russian law to strike a fair balance between the interests of the subjects of public relations. In this connection, the claim has another crucial significance — it ensures the right of the victim for the unhindered access to court by restoring his/her rights and compensating the moral damage inflicted by the criminal act. The realization of this right depends on the formulation of the object and grounds for the claim; their specific features are described by the author in the existing research concepts of the theory of claim developed in the civil procedure law research. The objective of protecting the violated rights of the victim is above the division of law into areas; it is formulated in view of the principle of optionality, which is reflected in both civil procedure and civil legislation of Russia. Taking into account the trends in the criminal policy of foreign countries aimed at the attenuation of the punitive side of the criminal justice system and the development of economic measures of influencing crime, the author presents arguments in support of the legal and actual appeal of a civil claim in criminal proceedings based on the established clauses of the procedural theory and the contemporary needs of the law enforcement practice.

ADMISSIBILITY OF EVIDENCE IN THE INVESTIGATION OF ROAD TRAFFIC ACCIDENTS IN PRE-TRIAL CRIMINAL PROCEEDINGS

The research paper is devoted to the problems of evidence’s disposal admissibility in road accident investigation during pre-trial criminal proceedings. The understanding of evidence admissibility in the Latvian and foreign criminal procedural law theory and law enforcement practice is examined; implementation of the establishment during pre-trial criminal proceedings by investigating road accident crimes during pre-trial criminal proceedings. The objective of the research paper: to investigate theoretical and practical issues of the establishment of disposal admissibility by investigating road accident crimes during pre-trial criminal proceedings; to identify problems in this context and to offer their solutions. During the practice pre-trial criminal investigation in road accident cases indicate shortcomings in the legal framework, as well as the competence of officials conducting criminal proceedings, the organization of work and the lack of methodological materials and standardized forms related to the specific nature of the road accident investigation. The solutions proposed by the author are related to the strengthening of the attachments’ admissibility specified in section 130 of the Criminal Procedure Law as evidence in criminal proceedings.

A expansão do Direito Penal europeu frente à subsidiariedade da tutela penal: alternatividade a partir da Mediação Penal de Adultos portuguesa

Este trabalho baseia-se na relevância das teorias de subsidiariedade da tutela penal e Direito Penal mínimo em confronto com o Direito Penal europeu. Para tanto, inicialmente será traçado um quadro da expansão do Direito Penal europeu, a partir de sua criação e efetivação até a atual competência penal da União Europeia. Em seguida serão analisados os princípios gerais a serem aplicados na análise do Direito Penal europeu, conforme instrumentos e órgãos da própria União e doutrina. Respectivamente, serão tratados: a Carta de Direitos Fundamentais da União Europeia, a Comunicação da Comissão de 2011 e o Manifesto sobre uma Política Criminal Europeia. Por fim, e sem minimizar a importância prática da aplicação em concreto dos princípios estudados, será tratado o instituto da Mediação Penal de Adultos como forma de diversão penal. Instituto este que, por ser instrumento de desjudiciarização, pode ser entendido como alternativa ao Direito Penal tradicional sancionador e, portanto, meio relevante para assegurar a subsidiariedade da tutela penal na União Europeia. Destarte, a partir deste trabalho poderão ser traçadas conclusões sobre o movimento de expansão penal na União Europeia e soluções para que o mesmo não aconteça ilimitadamente, em dissonância com o caráter de ultima ratioda tutela penal.

The Theory of Criminal Law Should Not Be Reduced to the Analysis and Criticism of Criminal Legislation

In both normative and sociological senses criminal law includes three components — criminal legislation, judicial practice, and criminal law doctrine, and the development of this branch of law is possible only in their unity. The criminal law doctrine is to a certain extent superior to the other components of the "triad" and involves the development of the branch’s principles, goals and objectives. At the same time, the improvement of criminal law is not the only goal of the theory of criminal law. It should not be limited only to criticism of the current legislation and proposals for its improvement. However, the vast majority of modern domestic criminal law publications, such as monographs, articles in legal periodicals, dissertations, are devoted to criticism of the current Criminal Code of the Russian Federation. Indeed, the current criminal law is not perfect, but the "imbalance" of research into the "law-making" side significantly reduces the scope of criminal law doctrine. And there will always be demand for theoretical studies on the analysis of the subject and method, system and objectives of criminal law, its sources.Debatable, for example, still is the issue of the legal nature of the decisions of the Plenum of the Supreme Court of the Russian Federation and, in particular, the judgments of the Constitutional Court of the Russian Federation. The explanations of the Plenum of the Supreme Court are a special kind of judicial interpretation and a fairly reliable tool for the courts to understand "the letter of the criminal law" and it’s applicability to the particular case. As for the assessment of the legal nature of the judgments of the Constitutional Court of the Russian Federation, the criminal law doctrine often fails to notice that they touch upon the methodological problems of the theory of criminal law. In relation to a number of criminal law prohibitions, judgments of the Constitutional Court of the Russian Federation are a source of criminal law, along with the Criminal Code. The Constitutional Court of the Russian Federation specified the most important principle of criminal law — the principle of legality and clarified the characteristics of criminality of socially dangerous acts prohibited by criminal law, which is directly related to the issue of criminal liability. In this sense, the Constitutional Court formulated a new and important addition to the content of the principle of legality — the certainty of criminal law rules, and, first of all, the criminal law prohibitions. Thus, the judicial authority overtook the criminal law doctrine in solving one of the most important issues for criminal proceedings.

Drawbacks of the bill project about supplementing article 286 of the Criminal Code of Ukraine with the norm of exemption from criminal liability and the risks of its adoption

The article analyzes the quality of the bill number 10236 dated April 17, 2019, filed by the People's Deputy of Ukraine I. O. Lapin, which proposes to amend the Article 286 of the Criminal Code of Ukraine as regards liability for violations of traffic safety rules.The attention is focused on a number of shortcomings and criminal-law risks that this bill contains. Such drawbacks are:1. The logical inconsistency of the considerations of the initiators of the bill, which, criticizing the legal uncertainty of the norms of the Road Traffic Rules of Ukraine, suggest that amendments be made not to the relevant points of the Rules, but to the Criminal Code of Ukraine.2. Failure to comply with the logical structure of the norms for exemption from criminal liability – exemption is not made dependent on the positive post-criminal behavior of the perpetrator.3. Ignoring the theoretical developments of the criminal law doctrine, according to which the conse- quences of a traffic accident may be causally related to violations of traffic safety rules imposed by several participants in traffic.4. Instead of reducing the amount of criminal liability (mitigation of responsibility) of a road accident participant who participated in the process of causing the consequences together with the others, it is unreasonable to propose complete and unconditional exemption from criminal liability.In addition to the above, the bill contains the risks of unjustified avoidance of criminal responsibility by persons who, along with other traffic participants, violated the rules of road safety and allowed the onset of traffic accidents.The research, carried out in this article, updates the problems of the quality of scientific support of the lawmaking process and the problem of criminal legal risks in law-making and law-enforcement activities, which have already been set in the domestic theory of criminal law.

”Bribe-taking “ and “bribe-extortion” as criteria of differentiation of responsibility for bribery

The paper is devoted to the issues of validity of differentiation of criminal liability for bribery depending on the legality or illegality of the civil servant’s conduct preconditioned by a bribe. Special attention is paid to the study of the legal nature of bribe-extortion, i.e. bribery for illegal actions (omissions to act). It is concluded that bribery for illegal actions (omissions to act) in office is not only a qualified element of the crime, but rather an independent main element of the crime entailing more severe criminal punishment due to the increased degree of public danger of this form of bribery. On this basis, it is recommended that the rules for the legislative formulation of qualified elements of crimes should not apply to such a form of bribery as bribe-taking. The opinion of some foreign legislators expressed in the theory of criminal law that the elements of bribery for illegal actions (omissions to act) should be excluded from the criminal law is refuted.

Structure of Mechanism of Implementation of Criminal Legislation

Due to the lack of thoroughly conducted research in theory of criminal law regarding the structure of mechanism for implementation of criminal legislation, as well as the connection of this category with criminal legal regulation and criminal legal relations, the purpose of this article is to study the conceptual framework of mechanism of implementation of criminal legislation. Methodology. Taking into account the specifics of the topic, goals and outlined objectives of the study, various general scientific, special-scientific and philosophical methods were used to ensure an objective study of the subject and development of ground-based conclusions. Among them, in particular, the systemic that was used in the study of mechanism of implementation of criminal legislation as a single integral phenomenon, consisting of individual components of the elements; dogmatic – was used to identify shortcomings and explore the possibilities of improving the structure of the mechanism for the implementation of criminal law; logical-semantic – was significant in the process of indepth study of categorical-conceptual apparatus regarding the structure of mechanism for implementation of criminal legislation. In order to ensure the formation of new proposals based on opinions presented in the special literature on the definition of structure of mechanism for the implementation of criminal legislation, method of generalization was applied. Using these methods, the structure of mechanism of implementation of criminal legislation has been considered. Scientific novelty. It was stated that mechanism of implementation of criminal legislation should include the following elements: 1) subjects of implementation, their rights and obligations enshrined in criminal law; legal consciousness, legal culture, experience, skills; 2) forms of implementation; 3) results of implementation (consequences of implementation); 4) implementation procedure. It is proved that mechanism for the implementation of criminal legislation should be considered in statics (as a system of these elements) and in dynamics (as an interaction of these elements). Conclusions. It is justified that mechanism for implementation of criminal legislation is a peculiar system of objective and subjective elements. The subject of implementation of criminal legislation is understood as a person who embodies criminal legal norms in life. The subjective side of implementation of criminal legislation is the legal culture, experience, sense of justice of the abovementioned subjects. Rights and obligations of subjects must be recognized as object of implementation of criminal legislation; in is contained in criminal legal norms. The objective side of implementation of criminal legislation primarily covers its forms – compliance, use, enforcement, application. It also includes the consequences of implementation of criminal legislation

Defining the Object of a Bribe: Some Aspects

The article analyzes the subject of a bribe from the standpoint of criminal law of Republic of Belarus and forensic science. In most cases forensic description of the subject of a bribe is based on its criminal law characteristics, but it does not reflect its forensic features. In the theory of criminal law, bribe is considered as the subject of a crime. But from the outlook of the forensic (material) structure of crimes related to bribery, the subject of a bribe, depending on the situation, may not only be the subject of a crime, but also the subject of criminal encroachment. This results from the attitude of the bribe taker to the subject before it is received. For example, if the bribe taker demands (extorts) money or property, then they are the subject of criminal infringement. According to the author, the bribe requirement increases the social danger of an act, regardless of whether it is accompanied by the threat of harmful consequences for a citizen who is in legal relations with an official. This leads to the need for improvement of the Belarus criminal law, particularly the replacement of the term «extortion of a bribe» to the term «demand a bribe» in the relevant provision of the Criminal Code of the Rebublic.

The Basis of Criminal Responsibility

Despite the importance for criminal law, the basis of criminal liability remains quite controversial in the criminal law science. At the same time, it has been studied in numerous sources. However, instead of analyzing criminal law, many authors consider it their duty to first share their own ideas about the basis of criminal responsibility, regardless of the actual content of the law.This article is structured differently. It attempts to understand what the norm-maker himself meant when formulating the provisions of art. 8 of the Criminal Code of the Russian Federation. The author finds it necessary to identify and analyze the features introduced by him as the basis of criminal responsibility. At the same time, the views on the basis of criminal responsibility existing in the theory of criminal law are critically examined, the failure of both this basis and the wording of art. 8 of the Criminal Code of the Russian Federation is recognized. The author expresses agreement with the logic of the introduction of a two-pronged basis of criminal responsibility provided by legislators. Based on the study the author proposes and justifies a new solution that better meets the urgent needs of the practice of criminal law implementation.

The role (meaning) of forensic medical examination in determining violent sexual assaults

The article deals with the problem of elaborating rules how to determine violent sexual assaults depending on the injury caused. The rules have been determined by means of studying criminal case files, research works in criminal law, aspects of medicine and forensic expert activities, and by comparing of possible situations and the approaches towards the determining of crimes which existed in the theory of criminal law. It is determined that the character and the degree of harm to the health resulting from criminal assault or violent sexual assaults impact the differentiation of criminal liability.

CRIMINALLY-LEGAL CHARACTERISTICS OF VIOLENCE UNDER REQUIRED DEFENSE (NATIONAL AND INTERNATIONAL ASPECT)

The article is considers violence as a sign of circumstances precluding the criminality of an act, including necessary defence. It is indicated that it in the relevant criminal law has the following meaning: it characterizes the basis of certain circumstances precluding the criminality of the act; its use is the basis for the "unlimited" use of force for protection; acts as a basis for bringing to criminal responsibility in case of exceeding the limits in certain circumstances, excluding the criminality of the act. The attention is focused on the fact that violence in the norm about the necessary defence, first of all, characterizes its basis and actions related to exceeding the limits of necessary defence. Violence characterizes such a legal basis of necessary defence as a socially dangerous encroachment. The author argues that such encroachment characterizes both criminal physical and criminal mental violence. The manifestations of the latter are threats that have the necessary criminal and legal signs, the main of which is the reality of the threat. Separately, the “attack” is investigated as a criminal-legal category. Its author’s definition is given and the concepts of “violence” and “attack” are distinguished as categories of circumstances precluding the criminality of an act. A study of the norms of the necessary defence in the laws of the developed countries of Europe and the former USSR has established that violence is a key feature that must be established and it must be given the necessary criminal law assessment. Additional arguments are provided in support of the position that it is violence, its nature and danger that create the grounds for the so-called “unlimited” necessary defence, which is provided for in most criminal legislations of the countries of the world. The author's proposals and recommendations for the improvement of the relevant criminal legislation of Ukraine and its practice are given. Methods. In preparing the article, the dialectical method was used, and the method of logical analysis. Based on the scientific position of Ukrainian and foreign scientists, the author made reasonable and relevant conclusions on the subject under study. The method of historical analysis allowed investigating the genesis of the development of legislation on the necessary defence. The comparative method allowed establishing the features of the criminal law assessment of violence in the necessary defence in the laws of the developed countries of Europe and the former USSR. Results and conclusions. It has been established that violence in the necessary defence is the most important sign of socially dangerous encroachment as its basis and characterizes the excess of the limits of necessary defence. Additional arguments are given that determine that it is a socially dangerous encroachment, and no other actions that should serve as the basis of the necessary defence. An analysis of the criminal legislations of different countries led to the conclusion that the Ukrainian legislation in this area as a whole meets the requirements of the theory and practice of European criminal law.