THEORY AND HISTORY OF LAW ENFORCEMENT
The Subject. The article is devoted to impact of coercion to the difference of legal statuses between law-obedient individuals and abusers.
The purpose of the article is to identify the difference between the impact of coercion on law-obedient citizens and abusers.
Methodology. The author uses theoretical analysis as well as legal methods including formal legal analysis and the method of social modeling.
Results, scope of application. It is proved that a certain difference (in the categories of phys-ics) should exist between the legal status of law-obedient individuals and abusers there is a certain difference. Where there is no such difference, there is no place for coercion.
Conclusions. The author comes to the conclusion that the essence of any punishment is the deprivation of certain benefits, which means the difference between the status of a person who did not conflict with the criminal law and those who entered into such a conflict. The magnitude of the difference depends on the severity of the crime.
The subject. The article is devoted to analysis of the basic models of criminal law and the impact of victim’s legal status on the criminal legal theory.
The purpose of the paper is to substantiate the existence and the importance of “criminal law of victim” as basic model of criminal legal theory.
The methodological basis of the research includes general-scientific methods (analysis and synthesis, system-structural approach) as well as academic methods (formal-legal method, method of interpretation of legal texts).
Results and scope of application. The definition of the role of the victim, the importance of his legitimate interests in the implementation of criminal liability is complicated by the fact that the basic models of criminal law developed by science – “criminal law of the offender” and “criminal law of the crime” – do not consider the victim as a subject of criminal legal relations.
The theoretical models of criminal law are embodied in the criminal law, specific legal rela-tions, law enforcement acts, etc., in connection with which there are specific indicators – the parameters by which it is possible to determine which model of criminal law is implemented.
If the question of the criminal legal personality of the victim is controversial, in my opinion, there is no doubt that the victim is a party to the criminal law conflict, which often begins to unfold long before the crime.
Conclusions. Recognizing the victim as a subject of criminal legal relations, as well as a par-ticipant in the criminal law conflict, it is possible to talk about the formation of a new model of criminal law – “the criminal law of victim”.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject. The article is devoted to analysis of the role of the judicial precedent in the system of sources of tax law.
Aim. The aim of this paper is to analyze the essence of national and international judicial precedents in the area of tax law.
Methodology. The author uses methods of theoretical analysis, particularly the theory of integrative legal consciousness, as well as legal methods, including formal legal method and methods of comparative law.
Results, scope. The role of judicial precedent in the system of sources of modern tax law is con-sidered in the article. Although the precedent in the Russian Federation as a source of law is not formally recognized, but actually used, its role in tax law is very high. The judicial precedent can be confidently recognized as the source of the tax law of Russia. In this case, courts often take on not only the role of interpreters of law, but their decisions act as a legal doctrine.
Conclusions. The author comes to the conclusion that the role of decisions of courts, especially the highest courts, is growing, up to giving them signs of a precedent interpretation.
The subject. The article is devoted to the issues of constitutional legal responsibility for crimes against the state unity and territorial integrity of the Russian Federation.
The purpose of the article is to reveal the actual problems of constitutional legal responsi-bility for crimes against the state unity and territorial integrity of the Russian Federation.
The methodology of the study includes general scientific methods (analysis, synthesis, com-parative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).
Results, scope. The article contains the analysis of the position of the state unity and territorial integrity of the Russian Federation among the objects of constitutional legal and crim-inal legal support. The specific features of constitutional legal responsibility for crimes against the state unity and territorial integrity of Russia are determined. Actual problems of constitutional legal responsibility of the President of the Russian Federation, Russian cit-izens, refugees, electoral candidates for crimes against its state unity and territorial integ-rity are revealed.
Conclusions. It is necessary to improve the current constitutional legislation in order to elim-inate the existing problems of constitutional legal responsibility for crimes against the state unity and territorial integrity of the Russian Federation. For this purpose it is necessary to add the grounds for impeachment of the President of the Russian Federation by the fact of commission of crime against its state unity and territorial integrity. It is also necessary to eliminate the legal inequality of citizens formed as a result of the introduction of constitu-tional and legal responsibility of naturalized citizens for committing crimes defined by law.
THE LAW ENFORCEMENT BY THE BODIES OF PRELIMINARY INVESTIGATION AND INQUIRY
The subject. The article is devoted to analysis of abuse of public rights in the sphere of crim-inal prosecution for violation the safety rules.
The purpose of the article is to identify the condition and prerequisites for abuse of public rights in the sphere of criminal prosecution for violation the safety rules.
Methodology. The authors use theoretical analysis and synthesis as well as legal methods including formal legal analysis, interpretation of legal acts and adjudications.
Results, scope of application. It is proved that such abuse is the application of the criminal law in controversy with its specific tasks, established by the interrelated provisions of art. 2 of the Criminal Code of the Russian Federation and art. 6 of the Criminal Procedure Code of the Russian Federation. The possibility of applying criminal law to the detriment of the pro-tected interests of citizens and in violation of constitutional principles is due to a number of factors: first, the blurring of the limits of criminal law impact in the field of security in the production of works or services, and secondly, the lack of isomorphism of criminal law norms providing for liability in the named sphere of public relations and, as a consequence, the lack of coordination of sectoral norms.Conclusions. Conditions for abuse the public rights in criminal sphere indicate that the leg-islator ignores the requirement of systematic legal regulation, since identical offenses can receive both criminal law and administrative legal assessment.
The subject. The article is devoted to analysis of criminal legal issues of reasonable risk.
The purpose of the article is to prove the necessity of reasonable risk manangement in crim-inal legal purposes.
Methodology. The problem of reasonable risk is considered through the theory of rational choice, economic analysis of law, as well as through formal legal analysis.
Results, scope of application. The justified risk demonstrates the ineffectiveness of the use of state coercion in view of the social utility of the actions performed, since the benefit from them exceeds the possible adverse consequences. It is stated that art. 41 of the Criminal Code of the Russian Federation is rarely applied by judicial bodies. Reasonable risk is confound by extreme necessity. At the same time, it is not taken into account that the risk is not accompanied by the inevitable infliction of consequences, whereas if extreme necessity they come necessarily. It is proposed to introduce a system of management of reasonable risk, including through stand-ardization, development of rules of conduct in terms of possible risk, calculation of the risk fac-tor. The risk of consequences is a key factor in determining guilt. The greater the likelihood of socially dangerous consequences anticipated by a person, the greater the corresponding risk, the greater the degree of guilt of the subject. For example, with regard to direct intent, the risk factor may be 95-100%, with respect to indirect intent – 50-95%, with respect to recklessness – 1-49% (with frivolity, a person, although predicting the possibility of occurrence of events, but presupposes that they will not come; therefore, he estimates the probability of less than 50/50), with respect to negligence – 0.1-1%. If the risk of the event is less than 0.1 % or the average value reflecting its random nature, it can be concluded that there is a case.
Conclusions. In case of a high probability of occurrence of consequences, the obvious risk is unreasonable and there are signs of intentional infliction. It is important to manage risks in terms of encouraging people to take risks if the criminal law imposes too high a risk level, a person abandons socially useful activities, which can lead to more serious adverse conse-quences. Stimulation of reasonable risk in criminal law is possible, inter alia, by means of pre-suppositions, in the performance of which the justified nature of risky actions is assumed.
The subject. The article is devoted to analysis of court practice concerning crimes in public procurement.
The purpose of the paper is to solve the problem of delimitation of theft committed by the perpetrator with the use of his official position, from abuse of official powers and official forgery is topical.
The methodology. General scientific methods as analysis, synthesis, induction, deduction, comparison were used. The system method allowed to consider misdemeanors and a set of rules providing for responsibility for their commission, in conjunction with public relations, which need criminal law protection. The functional approach made it possible to address the issues of qualification for official crimes against the contract system and the state de-fense order, taking into account the forms and methods of activity of the subjects of con-tractual relations.
Results and scope of application. An important role in improving the effectiveness of public procurement is played by officials who, in dealing with suppliers of goods and executors, are called upon to defend public interests. The public danger of crimes committed by offi-cials in this sphere is manifested in the destruction of the material basis of the functioning of the state, undermining its defensive capacity and reducing the level of security. Judicial practice testifies to the lack of uniform approaches to the qualification of crimes committed in the sphere of execution of the state and municipal contract.
The article proposes criteria for delimiting the encroachments of officials on the expendi-ture of budgetary relations, taking into account the addition of the criminal law to norms that provide for responsibility for abuse in the performance of the state defense order (art. 201.1 and 285.4 of the Criminal Code of the Russian Federation). In the qualification of crimes committed in the sphere of contractual relations, and the application of art. 201.1 and 285.4 of the Criminal Code of the Russian Federation are proposed to be guided by the recommendations of the Supreme Court of the Russian Federation on the delimitation of abuse of official powers from embezzlement.
Conclusions. It is necessary to proceed from the existence of two lines of activity of the customer. The first is the acceptance of the delivered goods, the work performed, the ser-vices rendered. The second is payment for goods, work and services.
The subject. The article deals with subsumption of malfeasance, judicial characterization of such white-collar crimes.
The purpose of the paper is to answer the question of admissibility of qualification of ho-mogeneous actions of a person according to two separate art. 285 and 286 of the Criminal Сode of the Russian Federation.
The methodological basis of the research includes general-scientific methods (analysis and synthesis, system-structural approach) as well as academic methods (formal-legal method, method of interpretation of normative legal and judicial acts).
Results and scope of application. Within the meaning of paragraph 15 of the Resolution of Plenum of Supreme Court of the Russian Federation, it is absolutely clear that legal actions of an official, which were not caused by official necessity, must be qualified under art. 285 of the Criminal Code of the Russian Federation.
Not only legally, but even from the point of view of ordinary logic, the qualification of ho-mogeneous actions by different criminal law norms is unacceptable.
Due to the fact that art. 286 of the Criminal Code of the Russian Federation is not a crime of corruption by its characteristics, art. 285 of the Сriminal Сode of the Russian Federation cannot be regarded as a special case of abuse of power.
Conclusions. This is unacceptable to qualify the homogeneous actions of a person according to two separate articles – art. 285 and 286 – of the Criminal Сode of the Russian Federation. It is necessary to add the Resolution of Plenum of Russian Supreme Court from October 16, 2009, No. 19 by the provisions more specifically delimiting qualification of malfeasance crimes according to art. 285 and 286 of the Criminal Сode of the Russian Federation.
THE LAW ENFORCEMENT BY THE JUDGES
The subject. The central element in combating corruption is punitive practice. The whole history of mankind testifies that corruption can be restrained only by effective application of criminal punishment.
The purpose of the article is to show the practice of assigning criminal punishment for cor-ruption crimes of various kinds.
The description of methodology. The authors use the conception criminally-legal response. The following characteristics of the criminal-legal response are distinguished: lack of response; very weak response – the number of convicts does not exceed 10; weak response – the num-ber of convicts is calculated within a few dozen people; adequate response – the number of convicts and penalties correspond to the criminological characteristics of a group of crimes; intensive reaction – the norm is realized in conditions of the possibility of ensuring the inevi-tability of punishment; punitive response – the norm is applied on the basis of the "letter, not the spirit" of the law; reflexive response – the appointment of punishment to privileged crim-inals in conditions of increased public attention; protest reaction – judicial practice comes into conflict with ill-conceived legislative novels.The main results and scope of their application. The practice of imposing punishment for corruption crimes in the following spheres is ana-lyzed: electoral; public service; commercial-service relations; of justice.
Conclusions. Punitive practice in relation to persons convicted of corruption crimes in gen-eral is characterized by exceptional humanism. As the main penalties the penalty is leading (50.1%), in the second place – suspended imprisonment (24.1%). Real deprivation of liberty applies only to the seventh part of corrupt officials (14.7%). For comparison: according to art. 158 "Theft" in 2016 was sentenced to imprisonment twice as many criminals – 30,3%. This ratio indicates an underestimation of the public danger of corruption crime and actu-ally disavows the proclaimed thesis that corruption is a systemic threat to national security.
The subject. The article is devoted to problems of appointment some criminal punishments alternative to the deprivation of liberty by courts in Russian Federation. The author gives an answer to the question, why punishments not related to imprisonment in the Russian Federation, especially deprivation of the right to occupy certain positions or engage in cer-tain activities, corrective labor, restriction of freedom, forced labor, are rarely appointed by courts, and the most common alternative punishments are only fine and mandatory work.
Methodology. Author uses such researching methods as analysis and synthesis, formally legal, comparative legal.
Results. The author proposes some concrete measures, aimed at expanding the practice of appointment some criminal punishments alternative to the deprivation of liberty.
It is necessary to reduce the size of the fine established in the Criminal Code of the Russian Federation. It is necessary to establish a penalty in the sanction of norms on crimes of small and medium gravity, committed for mercenary motives and connected with causing mate-rial damage.
In order of more effective serving of punishments in the form of compulsory and corrective works, it is necessary to interest employers, it can be expressed in granting tax credit ben-efits. The searching of specific facilities for serving corrective labor should be assigned to employment centers.
It seems expedient to introduce deprivation of the right to occupy certain positions or en-gage in certain activities as the main type of punishment to all sanctions of the norms about the responsibility for crimes of small or medium gravity related to the professional activities of the person.
It is necessary to eliminate gaps in the legislative regulation of punishment in the form of restricted liberty and to solve the problem of electronic monitoring of convicts using elec-tronic bracelets.
Conclusions. The punishment in the form of deprivation of liberty should be appointed by courts only in cases, when the crime is highly dangerous, the identity of the criminal is also characterized by a high degree of public danger. Serious changes are also needed in the legislative regulation of sentences not related to deprivation of liberty, and a number of other organizational measures aimed at expanding the practice of applying these punish-ments.
The subject. The article deals with the problem of mandatory replacement of punishment, not related to imprisonment, with more stringent measures of state coercion due to mali-cious evasion from serving the applicable penalties.
The purpose of the article is to identify the criteria for replacement of punishments to more severe one, including multi-stage replacement.
Methodology. The author uses the method of analysis and synthesis, as well as formal legal method and dialectic approach.
Results. The most vivid embodiment of the principle of the economy of repression is the provision of the courts the possibility of using alternative types of punishment that are al-ternative to deprivation of liberty (from fine to forced labor). Obviously, the economy of repression should be conditional.
The economy of repression always involves a certain risk, which is, first of all, a threat to evade the convict who is serving the least repressive measure of influence. Consequently, the application of the most lenient repressive measure of state coercion must be compen-sated by the mechanism for ensuring its implementation.
In the Criminal Code of the Russian Federation, the legislator uses different formulations that exclude a uniform solution to the question of a multi-step replacement of punishments.
It requires a change in the provisions of federal laws that are not related to criminal law, as well as by-laws that transfer the replacement of punishment in the form of a fine and man-datory works with a more severe punishment from imperative to dispositive - contrary to the direct requirements of the criminal law.
Conclusions. The legislative decision on the obligation of replacement should be clear and uniform. The current approach of the legislator is not justified, since the reality of replace-ment in determining the malicious evasion of the convicted person from serving the pun-ishment assigned to him should be the same regardless of the type of punishment served and should not become an automatic substitute, otherwise the court is deprived of the op-portunity to fully and comprehensively investigate the issue of the expediency of such a replacement in terms of the reasons for committing this violation of the regime and the achievement of the objectives of criminal punishment. Evasion of the convicted person from the sentenced punishment should always lead to neg-ative consequences for him, however, the institution of substitution of punishment for stricter ones does not meet this requirement.
The subject. The article is devoted to the investigation of the main direct object and the circle of victims are subjected of harm by criminal acts stipulated by pts. 1, 2 of art. 294 of the Criminal Code of the Russian Federation.
The purpose of the paper is to identify does the art. 294 of Criminal Code of the Russian Federation meets the other provisions of criminal procedure legislation.
The methodology of research includes methods of complex analysis, synthesis, as well as formal-logical, comparative legal and formal-legal methods.
Results and scope of application. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The discrep-ancy lies in terms of the range of participants in criminal proceedings and the functions performed by them, as well as the actual content and correlation of such stages of criminal proceedings as the initiation of criminal proceedings and preliminary investigation. In addi-tion, the current state of art. 294 of the Criminal Code of the Russian Federation does not take into account the ever-widening differentiation of criminal proceedings.
The circle of victims listed in pt. 2 of art. 294 of the Criminal Code of the Russian Federation should be supplemented by such participants in the criminal process as a criminal investi-gator, the head of the investigative body, the head of the inquiry department, the head of the body of inquiry. At the same time, the author supports the position that the criminal-legal protection of the said persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.
The circle of criminal acts provided for in art. 294 of the Criminal Code of the Russian Fed-eration, should also be specified with an indication of encroachment in the form of kidnapping, destruction or damage to such a crime as materials of criminal, civil and other cases, as well as material evidence.
Conclusions. The content of art. 294 of the Criminal Code of the Russian Federation does not comply with the provisions of the criminal procedure law. The author formulates the conclusion that the circle of victims listed in pt. 2 of art. 294 of the Criminal Code should be broadened and joins the position that the criminal-legal protection of these persons should cover not only their activities at the stage of preliminary investigation, but also of the entire pre-trial proceedings as a whole.
The subject. The author analyzes the features of crime prevention programs and the proce-dure of their development.
The purpose of the paper is to identify the principles of crime prevention programs devel-opment.
The methodological basis of the research includes general-scientific methods (analysis and synthesis, system-structural approach) as well as academic methods (formal-legal method, method of interpretation of legal acts).
Results and scope of application. The analysis is usually carried out in the following areas during the development of crime prevention programs:
1) Complex analysis. The purpose of this area of analytical work is to identify changes in the state of the operational environment and to establish the factors that determined them. In the process of such analysis, the geographical, political, socio-economic and demographic characteristics of the territory served are to be studied.
The conclusions obtained in the analysis of the indicated conditions contain an assessment of the criminal situation; the definition of the most urgent problems and directions of pre-ventive activities.
Thus, the results of the complex analysis form the basis of analytical work.
2) Current analysis. Through this area of analytical work, the study of natural manifestations of crime is provided. The current analysis differs from the complex one mainly by the vol-ume of initial information and the depth of the study.
3) Private analysis. This is done when the information obtained by the integrated or ongoing analysis is not sufficient to explain the trend or the deviation from the established trends. The results of private analysis (depending on their scope and feasibility) are usually used to decide on individual activities.
Conclusions. The development of crime prevention programs is a scientifically based set of actions for the preparation of appropriate targeted programs that define a system of crime prevention measures. The principles for the development of crime prevention programs are fundamental ideas that should guide practitioners in this type of activity. The main princi-ples of the development of crime prevention programs are: the optimality, timeliness, con-sistency, systematization and prognostic nature, legality.
PERSONALITIES
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