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Journal articles on the topic 'Circumstances excluding Criminal Liability'
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1
Kursaev, Aleksandr. "Circumstances excluding criminal liability for nonpayment of wages." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 2 (July 21, 2020): 123–30. http://dx.doi.org/10.35750/2071-8284-2020-2-123-130.
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Relevance of the research topic. The criminal code of the Russian Federation establishes criminal liability for non-payment of wages (article 1451). Liability under this rule occurs only if the employer has the actual ability to make payment of wages. In this regard, the author analyzes situations that may indicate the absence of such a possibility, and their significance in the qualification of the crime, based on the study of judicial and investigative practice. Problem statement. In science, there is no unity of views regarding the qualification of situations in which the perpetrator does not have the opportunity to repay the arrears of wages. It is proposed to consider the existing cases according to the rules of extreme necessity, reasonable risk, innocent behavior, and so on. However, each of these institutions differs in a specific set of characteristics necessary for the recognition of the committed act as inviolable. In this regard, the possibility of exemption from criminal liability for nonpayment of wages directly depends on the circumstance that eliminates the criminality of the committed act, if there are good reasons for non-payment, it can be attributed to.
Research goals and methods. The purpose of the study is to assess the criminal law circumstances in which the crime of non-payment of wages can be eliminated. The paper uses dialectical, comparative legal,
historical-legal, formal-legal methods of legal research.
Results and key conclusions. A study was conducted on the possibility of applying the circumstances provided for by the Criminal code of the Russian Federation that eliminate the criminality of an act to cases
of non-payment of wages. The conclusion that only extreme necessity can be considered as the only such circumstance is substantiated.
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Rizayeva, Dana, and Ammar Manna. "Circumstances excluding criminal liability under the criminal law of the Muslim countries." E3S Web of Conferences 135 (2019): 04071. http://dx.doi.org/10.1051/e3sconf/201913504071.
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In Islamic criminal law there are no institutions the general part, in that connection, it shared the list of circumstances that exclude the criminality of an Act, not developed. In Islamic criminal law, such circumstances, according to the analysis of some of his sources are not reaching the age of responsibility, a State of insanity, mislead, commit a crime under duress, self-defense, urgency, as well as remorse. The article is devoted to the characterization of the circumstances excluding criminal liability under the criminal law of the Muslim countries professing the Anglo-Saxon system of law. Main purpose is to form an idea of the role the circumstances excluding criminal liability under the criminal law of the Muslim countries professing the Anglo-Saxon legal system in modern conditions based on foreign legal literature, and an analysis of the criminal law. The hallmark of Muslim law is a priority of the religious laws of Islam, which govern all aspects of the life of Muslims. The question of the role of the circumstances excluding criminal liability under the criminal law of the Muslim countries professing the Anglo-Saxon legal system in modern conditions is covered in Islamic law with the aim of precise qualification of perfect a criminal offence, with a view to establishing the legality of the Act.
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Rizayeva, Dana E. "General Characteristics of the Circumstances Excluding Criminal Liability under the Criminal Law of Muslim Countries Practicing the Anglo-Saxon Law." International Journal of Psychosocial Rehabilitation 24, no. 5 (April 20, 2020): 4697–703. http://dx.doi.org/10.37200/ijpr/v24i5/pr2020183.
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Sobko, H. M. "Mental violence in the form of forced as circumstances, excluding criminal liability." State and Regions. Series: Law 4 (2019): 141–45. http://dx.doi.org/10.32840/1813-338x-2019-4-24.
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Dorogin, D. A. "Performance of a Special Task (Operational Implementation) as a Circumstance Excluding Criminal Liability." RUSSIAN JUSTICE 7 (July 2019): 57–68. http://dx.doi.org/10.17238/issn2072-909x.2019.7.57-68.
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Hirsnik, Erkki, and Marje Allikmets. "Restraining at Care Institutions Evaluated from the Standpoint of Penal Law." Juridica International 27 (September 30, 2018): 129–57. http://dx.doi.org/10.12697/ji.2018.27.13.
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The connection of restraining measures and necessary elements of a criminal offence may be twofold. First, restraining measures can correspond to actions described in legal provisions of the special part of the Penal Code. It means that the restraining person could be charged under criminal law. Secondly however, it needs to be noted that in some cases, liability under criminal law may follow when restraining measures are not being used - a person may become liable for committing a crime by failing to act. Thus, the job of a caretaker involves a high level of responsibility and danger in the sense of penal law - a punishment may follow both for doing something and also for failing to act. Upon the implementation of restraining measures, several constitutions of the special part of the Penal Code may become relevant. However, the primary provision to view here is Article 136 of the Penal Code (unlawful deprivation of the liberty of another person). Therefore, the article mainly focuses on this provision and also analyses some other provisions of the special part of the Penal Code that may become relevant. It also addresses general circumstances excluding illegality, i.e., the circumstances to be considered not only in care institutions but also almost everywhere else. After this, the article analyses specific circumstances excluding illegality, that is the circumstances relevant within the context of the topic of the article. Since there is very little legal literature (and case law) on this matter in Estonia, the article is mainly based on German law as an important model the Estonian law is built upon.
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Borkov, Viktor. "Victim of operational provocation or criminal?" Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 2 (July 21, 2020): 111–16. http://dx.doi.org/10.35750/2071-8284-2020-2-111-116.
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The article discusses the urgent, not regulated by the criminal law, problem of qualifying the actions of the person who committed the crime as a result of the provocative actions of law enforcement officials. Attention is drawn to the absence in theory and judicial practice of a consistent scientific and legal justification for the release of persons provoked to a crime from criminal liability. An “encroachment” committed as a result of a “police provocation” is considered taking into account the institutions of complicity, involvement and inducement to commit a crime. The author examines the proposals already made by experts from fixing the provocation of a crime as one of the circumstances excluding criminal liability (Chapter 8 of the Criminal Code of the Russian Federation), to including its arsenal of operationalsearch means to combat crime. According to the constitutional legal understanding of the investigated problem, the assessment of the act of the provoked is influenced by the activities of the persons who incited him to commit a crime, the essence of the disturbed social relations and the nature of the physical, property, organizational or other consequences that have occurred. The question of the criminal legal assessment of the acts of the provoked persons is proposed to be decided differentially, taking into account the reality and the measure of the harm caused by them.
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Smirnov, Alexander М. "Foreign experience in legal regulation of extrajudicial forms of protection of an individual’s rights and freedoms, excluding the criminality of the act." Vestnik of Saint Petersburg University. Law 12, no. 1 (2021): 144–54. http://dx.doi.org/10.21638/spbu14.2021.110.
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The article describes the provisions of the sources of criminal law of some foreign countries regarding the regulation of extrajudicial forms of protection of an individual’s rights and freedoms, excluding the criminality of the act. The author refers to these forms as a necessary defense, causing harm to the person who committed the crime, and extreme necessity. The article discusses the possibility of implementing the provisions of these sources in Russian criminal law to improve the state response to the implementation of these forms. The author comes to the conclusion that the most positive and constructive features of legal regulation in foreign countries, extrajudicial forms of protection of an individual’s rights and freedoms while excluding the criminality of the act, deserve scientific attention and consideration of their implementation in domestic criminal law and legal practice. The main features consist of the following: the conditions for the onset of the right to necessary defense, extreme need and infliction of harm during the detention of a person who has committed a crime, and the grounds for exceeding it; taking into account the situation when determining the legitimacy of the given circumstances; allocation of privileged conditions under which a person is either exempted from criminal liability or not exempted from it, but can count on mitigation of punishment; criminal prosecution for actions if absolutely necessary only if they have resulted in more harm than the harm prevented; regulation of legal and factual error with the necessary defense and extreme necessity; legal regulation of the conditions for the use of weapons in the implementation of these forms; holding accountable those who provoked the necessary defense; the emergence of the right to necessary defense of the person whose rights are being encroached upon.
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Oreshkina, T. Yu. "Successful experience in research of the execution of the law: review of the monograph of D.A. Dorogin «Execution of the law as a circumstance excluding criminal liability»." Rossijskoe pravosudie 4 (March 24, 2020): 100–103. http://dx.doi.org/10.37399/issn2072-909x.2020.4.100-103.
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Raposo, Vera Lúcia. "Doctor’s Criminal Liability and Medically Assisted Death – The Portuguese Case." European Journal of Health Law 26, no. 3 (June 19, 2019): 240–54. http://dx.doi.org/10.1163/15718093-12264430.
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Abstract Recently, the Portuguese Parliament discussed four proposals aimed at allowing some forms of medically assisted death. However, all of them were rejected by the majority. Therefore, doctors who in some way accelerate a patient’s death risk being convicted of the crime of homicide. Portuguese law provides some legal mechanisms that can exempt a doctor from criminal liability, such as causes excluding the conduct’s wrongfulness, and causes excluding the doctor’s culpability. Other elements to take into consideration are a proper interpretation of homicide crimes, thereby excluding conducts without the intent to kill; the relevance of patient consent; and the rejection of medical futility. This article explains how a doctor may not be held criminally accountable for medically assisted death, even in restrictive jurisdictions such as the Portuguese one.
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Savinskiy, A. V. "Circumstances Excluding Criminality of an Act in the Light of the General Theory of Law." Lex Russica, no. 11 (November 15, 2020): 62–70. http://dx.doi.org/10.17803/1729-5920.2020.168.11.062-070.
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The paper is devoted to an actual problem of the legal theory and practice, namely: the institution of circumstances excluding criminal nature (criminality) of an act (Chapter 8 of the Russian Criminal Code). As a manifestation of criminal and legal compromise steadily strengthening its position in domestic criminal legislation, this legal phenomenon is intended to encourage citizens to commit actions that contribute to localization or minimization of threats to the interests of the individual, society and the state protected by the law. At the same time, despite seemingly clear legislative enactment, the institution of circumstances precluding the criminal nature of an act evokes hot scientific debates. Among forensic scientists there is no uniform opinion concerning the legal nature of the criminal law institution as a whole and some of the individual types of circumstances constituting the institution under consideration, in particular. The legal literature substantiates the idea of the need to expand the legislative list of such circumstances. Investigators and judges often face difficulties in practical application of the rules enshrined in articles of Chapter 8 of the Criminal Code (especially provisions concerning necessary defense, extreme necessity, reasonable risk). The reasons for theoretical and practical problems related to the circumstances excluding the criminal nature of the act are largely preconditioned by the insufficient research of the institution under consideration in the general theory of law. This fundamental theoretical legal science lacks general legal equivalents of the criminal law concepts “criminality of the act”, “circumstances excluding criminality of the act.” It is proposed to introduce into scientific circulation the general legal equivalent of the concept “criminality of the act” — “delinquency of the act”, representing the set of such features of the offense as public harm, wrongfulness, culpability and punishability. This new legal design will allow us to investigate the phenomenon of circumstances excluding criminality of the act in the light of a general theory of law, to determine the possibility and limits of their subsidiary application in various branches of law. Thus, categories of circumstances excluding criminal, administrative, civil. disciplinary delinquency of acts will acquire the right to exist in differnt legal sciences and relevant branches of law. This, in turn, will contribute to improving the effectiveness of protection of rights, freedoms and legitimate interests of the individual, ensuring the interests of the society and the state.
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Milyukov, Sergey, and Andrei Nikulenko. "Circumstances excluding the criminal act, in the criminal law of Russia and Vietnam." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2020, no. 2 (July 21, 2020): 229–40. http://dx.doi.org/10.35750/2071-8284-2020-2-229-240.
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the article describes the circumstances excluding criminality of the act in the criminal legislation of the Russian Federation in comparison with the corresponding Chapter of the criminal law of the Socialist Republic of Vietnam. A comparative analysis of the content of the norms regulating lawful harm is made. A number of issues related to the use of weapons by law enforcement officials in Russia and Vietnam were raised. Using the comparative method, the authors try to investigate the relevant norms, identify the advantages and disadvantages of legal regulation of circumstances that exclude the criminality of an act. note that the authors are in the position of expanding the range of circumstances that exclude the criminality of the act, which are subject to normative consolidation in the criminal legislation. Moreover, in view of the ambiguous and often inconsistent practice of applying criminal legislation in this area, it is proposed that in the further reconstruction of the relevant norms of Chapter 8 of the criminal code, use a casual way of presentation to create the most understandable for citizens wording of norms that allow lawfully cause harm to public relations protected by criminal law. Otherwise, the very fact of their existence in criminal legislation is called into question because of the inability and unwillingness of citizens to use the right granted by law. Possible ways of resolving contradictions in the criminal legislation of Russia and Vietnam are suggested.
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Savin, Pavel T. "CIRCUMSTANCES EXCLUDING CRIMINAL RESPONSIBILITY FOR MURDER UNDER THE VISIGOTHIC CODE." Bulletin of the Moscow State Regional University (Jurisprudence), no. 2 (2017): 47–53. http://dx.doi.org/10.18384/2310-6794-2017-2-47-53.
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Duttwiler, Michael. "Liability for Omission in International Criminal Law." International Criminal Law Review 6, no. 1 (2006): 1–61. http://dx.doi.org/10.1163/157181206777066745.
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AbstractWhile deliberately excluding from its scope the issue of superior responsibility, this article considers whether there is a general rule of international law providing for liability for omission on which to base a concept of "improper crimes of omission" or "commission by omission".By analyzing international law sources, the article finds that treaty law contains a provision of only limited scope. A customary law rule, it argues, could not come into existence due to the lack of opinio iuris. Turning to general principles of law, the article studies various legal systems, concluding that there is a general principle of law, which for the purposes of criminal law equates the human conduct of omission with action, if a legal duty to act exists.Based on this finding, the article argues that the International Criminal Court is in a position to apply the concept of commission by omission despite the lack of such a general provision on omission in the Rome Statute.
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Kozachenko, I. Ya, and D. N. Sergeev. "Criminal Liability in Conflictological Discourse." Lex Russica, no. 9 (September 18, 2020): 49–62. http://dx.doi.org/10.17803/1729-5920.2020.166.9.049-062.
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The paper deals with the history of criminal law and criminal liability in conflictological discourse. On the basis of ideas of legal pluralism, the authors investigate the transformation of the criminal and legal mechanism of conflict resolution from ancient times to the present. They study the customs of exile, blood vengeance, blood reconciliation, as well as a number of other customs of Amazonia and North America. The paper explains that such customs remain until now due to the expressed compensatory character and evaluates the origins of ritualization of conflict resolution procedures in ancient society. The authors examine the circumstances of the disappearance of the victim concept from repentant law, as well as the borrowing of the religious concept of responsibility not before the victim, but before the suzerain by secular law.The authors note that many generations of lawyers have formed their professional consciousness under the influence of an indispensable formal cliché: for the committed crime the perpetrator must be held criminally liable not before the injured person, but before the State that is not in the least at times guilty of failing to provide the victim with a safe life. Few doubted that the postulate given is the only one true. This example of survivability of ancient criminal law customs demonstrates the interest of society in alternative ways of solving criminal law disputes. The authors conclude that legal pluralism is natural for the area of criminal law due to the expressed compensatory tendency in the society’s perception of criminal liability. The penetration of compensatory elements into modern criminal law is assessed as a positive and only possible trend of further criminal law development.
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WALDZINSKI, TOMASZ, CEZARY WALDZINSKI, ALEKSANDRA DURZYNSKA, EWA WALDZINSKA, MALGORZATA KNAS, and KAZIMIERZ KOCHANOWICZ. "Criminal liability for injuries of competitors arising in the course of sports competition in Polish criminal law." Baltic Journal of Health and Physical Activity Supplement 1, no. 1 (December 31, 2020): 11–18. http://dx.doi.org/10.29359/bjhpa.2020.suppl.1.02.
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Practicing both high performance and recreational sport involves not only many sacrifices, taking care of one's health and maintaining an appropriate shape, but also risks which result in damage to one's health and, in extreme cases – the death of a contestant. The athletes suffer various types of sports injuries during competitions or training sessions. Much of it is due to the behaviour of another contestant. Therefore, the question is when a sportsman, in the Polish legal system, will be liable for a penalty for the fact that during the competition he caused an injury (sporting injury) to his rival. The criminal liability of sportsmen may be subject to criminal law provisions concerning: causing serious bodily harm, causing other than serious bodily harm, unintentionally causing the death, violating personal inviolability. According to the criminal law, an injury caused as a result of sports activity should be defined as a bodily harm. It should also be pointed out that in the Polish legal system it has been developed by doctrine and reflected in court rulings, the sport risk justification excluding the unlawfulness of the act and thus excluding criminal liability of the competitor causing damage to the health or death of the competitor.
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Pokora, Andrzej. "ASSERTING CRIMINAL LAW CLAIMS ON BEHALF OF THE STATE TREASURY FROM CONVICTS BOUND BY THE JOINT MARITAL PROPERTY REGIME." Roczniki Administracji i Prawa 2, no. XVIII (December 30, 2018): 245–58. http://dx.doi.org/10.5604/01.3001.0013.1794.
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The article covers the terms and scope of liability of convicts from their personal property and from the joint property when they are bound by the joint marital property regime. In the first place, problems of a convict’s liability from the personal property is discussed. Then, the possibility of the convict’s liability from the joint property is presented. Finally, the article discusses problems of limiting or excluding the liability under art . 28 of the Executive Penal Code and the impact of a change in property relations between spouses on the conduct of execution of criminal law liabilities.
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Sirotkina, Mariia. "Exemption of person from criminal liability and correlation with the principle of presumption of innocence." Legal Ukraine, no. 8 (October 2, 2020): 44–50. http://dx.doi.org/10.37749/2308-9636-2020-8(212)-5.
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This article examines the institution of exemption from criminal liability as an alternative to criminal prosecution and correlation with the principle of presumption of innocence on the basis of current criminal procedure legislation, scientific researches and judicial practice (case law). It is established that the initial position of scholars, who adhere to the opinion of contradiction of the institution of exemption from criminal liability with the principle of presumption of innocence, is that, in itself, the fact of exemption from criminal liability indicates a guilty plea and requires sentencing in accordance with Part 1 of the Article 62 of the Constitution of Ukraine. It was found out that reference of some scholars to commitment of a crime by a person is possible only due to availability of guilty verdict, not a court ruling. Because, there are many norms in legislation which may restrict certain citizens’ rights on the basis of ceasing a criminal case under «non-rehabilitative» circumstances. Other ones propose to abandon the institution of exemption from criminal liability in general and advocate expanding the scope of the institution of release from punishment, improving other means of criminal law regulation of the crime which is established by a guilty verdict of a court. It is being proved that the principle of presumption of innocence while exempting from criminal liability is not restricted: the prescriptions of presumption of innocence should be assessed, firstly, as not included into the mechanism of criminal liability, and secondly – as criminal law measures which are an alternative to punishment. Exemption of a person from criminal liability remains to be an effective means to resolve a criminal law dispute in cases prescribed by law. A person who has committed a criminally punishable act is, in no way, limited in their rights, much less in the right to implement the principle of the presumption of innocence. Key words: alternative, liability, exemption (release), punishment, presumption of innocence.
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Lisnevska, N. O. "Legal liability and risks during infusion therapy." Infusion & Chemotherapy, no. 3.2 (December 15, 2020): 175–77. http://dx.doi.org/10.32902/2663-0338-2020-3.2-175-177.
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Background. The issue of legal liability is extremely important for all healthcare workers (HCW). HCW are solely responsible for medical violations during the performance of their professional duties. There is a misconception that in case of non-provision or error in the provision of medical care outside the medical institution, the HCW will be liable. However, this is not always so, as in this case the HCW is considered an ordinary citizen and bears ordinary civil liability.
Objective. To describe the legal aspects of MP liability, in particular, during infusion therapy (IT).
Materials and methods. Analysis of the legal framework.
Results and discussion. The public consciousness has formed the idea of the great responsibility of HCW for human life and health. Unfortunately, in Ukraine, people often do not care about their own health and do not take preventive measures, shifting all responsibility to HCW. Citizens have the right to receive health care and the right for the compensation of improper medical care and damage caused by the actions of the HCW. According to surveys, a lawsuit from a patient is the leading fear of HCW. This fear needs to be reduced, as the doctor and nurse should not be afraid of their patients. According to the objective model of liability, the HCW is guilty of the damage caused to the victim (patient), if the average citizen believes that the actions of HCW were the cause of the unfavorable course of events. This model is often used by domestic media, although in Ukraine it is not enshrined in law. For a long time, criminal liability for medical crimes has dominated Ukraine. Currently, there are criminal, administrative, disciplinary and civil kinds of liability. According to the criminal legislation of Ukraine, criminal liability arises for a crime that contains a crime according to the Criminal Code. Criminal activity contradicts the very essence of medical activity, so special attention is paid to such crimes. It should be noted that the intentional crimes committed by HCW are much less common than crimes of negligence. An important problem is that lawyers do not always understand the specifics of the nature of a medical crime. There are circumstances in which HCW are released from liability for a crime. These circumstances include actions of extreme necessity and actions in risk settings. Extreme necessity often takes place in urgent medical interventions. These circumstances often accompany emergency care in case of accidents, military problems and disasters.
IT is often a kind of experiment, because the drugs administered may be perceived differently by the patient, even with a normal previous history. Because treatment is often associated with risk, for example, in case of IT side effects, a nurse who continues to administer the drug on a protocol or off-protocol (subject to consultation with the patient and/or the board of physicians) will not be criminally liable. Similarly, a nurse will not be criminally liable in case of deciding to discontinue IT due to the patient’s deterioration. In such circumstances, the nurse should inform the physician of the situation as soon as possible and eliminate the danger to the patient as soon as possible. Cases in which the damage was caused intentionally for a useful purpose is a separate category of cases. This is most common in chemotherapy and in experimental studies. The HCW should take sufficient, in his opinion, and appropriate to his qualification measures to improve the patient’s condition. Sometimes nurses have to make decisions in time deficit, for example, as for measures for a patient with a psychiatric illness that threatens other people. In such cases, there is also no criminal liability, as the act was committed to save the lives and health of others.
Medical crimes are divided into professional and official. The first are directly related to the performance of professional duties (HIV/AIDS, illegal abortion, disclosure of personal information of the patient, violation of the patient’s rights, not providing medical care provision, etc.). It should be noted that the HCW cannot be blamed for not providing medical care if it does not meet his/her qualifications.
Conclusions. 1. HCW must know their rights and act for the benefit of patients. 2. Medical crimes are divided into professional and official. 3. There are situations in which HCW are released from criminal liability.
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Gafurova, E. R. "ON THE ISSUE OF CRIMINALIZATION OF CRIMINAL ACTS RELATED TO THE SPREAD OF CORONAVIRUS INFECTION." Bulletin of Udmurt University. Series Economics and Law 31, no. 2 (April 20, 2021): 243–50. http://dx.doi.org/10.35634/2412-9593-2021-31-2-243-250.
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The article deals with the issues of improving the Russian criminal legislation on toughening responsibility in the context of coronavirus infection. The author analyzes the effectiveness of measures to tighten criminal liability for violations of quarantine measures in order to counter the spread of coronavirus infection in foreign countries and presents proposals for improving Russian criminal legislation, taking into account the data of a sociological study conducted among citizens of the Russian Federation. In order to study the norms of criminal legislation introduced by Federal Law No. 100-FZ of 01.04.2020, on liability for the dissemination of deliberately false information about circumstances that pose a threat to the life and safety of citizens, examples of judicial practice are given. There is a promising tightening of legal liability in the context of the spread of coronavirus infection in Russia based on the experience of foreign countries.
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Dorogin, D. A. "Types of a Legal Mistake Excluding Criminal Responsibility." Lex Russica, no. 8 (August 29, 2019): 74–85. http://dx.doi.org/10.17803/1729-5920.2019.153.8.074-085.
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The article deals with the problems of identification of such types of the legal mistake that exclude criminal liability. With regard to the legal regulation and on the basis of the provisions of the criminal law doctrine, the author gives his own classification of the legal mistake and substantiates the necessity of recognition of its legal significance. The author comes to the conclusion that the variety of legal mistakes should be systematized on the basis of two criteria each of which implies two variants of manifestation. They include the cause of the mistake (either a defect of lawmaking or a defect of perception of established normative requirements), as well as the nature of the mistake (either ignorance of the fact of existence of criminal law prohibition or ignorance of its content). Within the framework of a comprehensive classification based on various combinations of the criteria under consideration, four types of the legal mistake that exclude criminal responsibility are distinguished: 1) a mistake caused by a defect in lawmaking and related to the ignorance of the existence of the criminal law prohibition; 2) a mistake caused by a defect in lawmaking and associated with the ignorance of the content of the criminal law prohibition; 3) a mistake caused by a defect in perception of established normative requirements by a person and related to the ignorance of the fact of existence of the criminal law prohibition; 4) a mistake caused by a defect perception by the person of established regulatory requirements and associated with the ignorance of the content of the criminal law prohibition. The article deals with the problems of presumption of knowledge of the law and awareness of wrongfulness of the act with due regard to intersectoral links existing in criminal law. The author refers to the legal stance of the Constitutional Court of the Russian Federation, the European Court of Human Rights, the Supreme Court of the Russian Federation and relies in his conclusions on the examples from case law and jurisprudence, and makes references to foreign experience.
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Yusubov, Kostyantyn. "Criminal liability for violation of the order of enforcement of judgments under the laws of foreign countries." Law Review of Kyiv University of Law, no. 2 (August 10, 2020): 417–21. http://dx.doi.org/10.36695/2219-5521.2.2020.82.
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The article deals with the study of foreign experience of criminal responsibility for separate crimes that infringe on the executionorder of conviction. The presence of alternative models of consolidation in the criminal laws of European countries and the norms ofresponsibility for failure to execute judicial decisions, primarily due to the national characteristics of the criminal law. Features of re -gulation of criminal responsibility for crimes against the order of execution of a judgment of conviction for which the person is sentencedto the punishment associated with the restriction of freedom in the EU member States. Determined that the norms about criminalliability for failure to execute court decisions may be presented as a single article (General rule), and in the form of several rules, whichprovide for liability for failure to enforce court decision of a particular kind, namely: 1) qualification of aiding escape from prison asseparate crimes; 2) the establishment of criminal liability for the qualified form of escape from the place of deprivation of liberty; 3) theconsolidation of criminal liability of the person who organized the escape from prison with the simultaneous involvement of the perpetratorsescape, is subject to disciplinary, and not criminal liability; 4) the establishment of criminal liability for illegal release fromplaces of detention and mitigation of the regime of serving sentences, as well as the application of more serious penalties against thesubjects of the offences against the penal system, what is the officials of the penitentiary institutions.It was determined that in some member States of the EU enshrines the criminal liability only for the qualified form of escapefrom the place of imprisonment and the liability of the person who organized this escape, and while the perpetrator of the escape, subjectto disciplinary, and not criminal liability. However, a significant proportion of the EU countries provides criminal responsibility forescaping from places of imprisonment without any other aggravating circumstances that can explain the substantial public danger ofthe crime.
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Andrianov, V. K. "Legal and Actual Characteristics of the Institute Exemption from Criminal Liability." Rossijskoe pravosudie 10 (September 25, 2020): 83–92. http://dx.doi.org/10.37399/issn2072-909x.2020.10.83-92.
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Analysis of judicial practice shows that the greatest difficulties and errors in the courts and the prosecutors and investigators in the application of exemption from criminal liability, related to the issues of legal facts. It is no coincidence that most of the content of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 27 June 2013 No. 19 is devoted to clarifying questions about legal facts provided for by the norms of Chapter 11 of the Criminal Code of the Russian Federation. The purpose of this article is the legal and factual analysis of the release of the institute of criminal responsibility, which is in the general theory of law recognized by specific methodological direction in the explanation of legal phenomena In the article we developed a number of questions of legal conditions and facts with which the criminal law links the exemption from criminal liability: on the concept of the person who committed the crime for the first time; on exemption from criminal liability in the event of the commission of an unfinished crime and a crime of complicity; on the types of legal facts serving as the basis for such consequences; the amount of positive post-criminal behavior required for release; competition between the grounds for exemption from criminal liability; on the role of other social circumstances, when making the appropriate decision, etc.
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Zaigraeva, Vladislava. "Fighting the smuggling of strategically important resources for environmental safety ensuring." E3S Web of Conferences 258 (2021): 05019. http://dx.doi.org/10.1051/e3sconf/202125805019.
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The international illegal trade of rare flora and fauna objects has long been an acute international issue. At the same time, a significant volume of smuggled rare species of animals and plants falls on Russian Federation. In order to counter criminal encroachments against rare and endangered species of animals and aquatic biological resources, amendments were made to the Russian criminal legislation, including Article 226.1. of Criminal Code of Russian Federation, in accordance with which criminal liability is established for the smuggling of especially valuable wild animals and aquatic biological resources listed in the Red Book of Russian Federation and (or) protected by international treaties of Russian Federation. At the same time, the imperfection of legal norms governing liability for smuggling significantly reduces the level of their protection. These circumstances require constant improvement of measures to counter smuggling, including criminal law improvement.
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Husak, Douglas N. "Ignorance of law and duties of citizenship." Legal Studies 14, no. 1 (March 1994): 105–15. http://dx.doi.org/10.1111/j.1748-121x.1994.tb00567.x.
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Theoretical discussion of the question of whether and under what circumstances ignorance of law should be a defence from criminal liability has had a peculiar history in Anglo-American law. Commentators have been more convinced that ignorance oflaw should generally not serve as a defence than they have been persuaded by any particular rationale in favor of this rule. When one argument is shown to be unsound, another emerges to take its place, preserving the conclusion intact; the weight of scholarly opinion does not shift to embrace the position that ignorance of law should typically be a defence from criminal liability.
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Karabanova, Elena. "Problems of Systemic Penalization (Using the Example of Differentiating Criminal Liability for Crimes with Many-Object Corpus Delicti)." Russian Journal of Criminology 13, no. 2 (April 26, 2019): 271–82. http://dx.doi.org/10.17150/2500-4255.2019.13(2).271-282.
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The author examines the issues of differentiating criminal liability in connection with an additional object in corpus delicti. It is shown that each modern criminal law has its own penological system, i.e. an interconnected system of sanctions in the Special Part of criminal law and the criminal law institutes of punishments, other criminal law measures, the exemption from criminal liability and from punishment. When constructing the sanctions of some criminal law norm, the lawmaker should keep it in mind that this is an element of the criminal law’s penological system, and that its introduction or change will have an impact on the system as a whole. Besides, it is necessary to observe the methodological principle of systemic balance, which presupposes the mutual relativity of the strictness of sanctions and the influence which the institutes of punishment, other criminal law measures, the exemption from criminal liability and from punishment have on the actual strictness of criminal liability. The author demonstrates the principle of systemic balance using the example of penalizing multi-object crimes with aggravating circumstances. Special attention is paid to the methodology that would be appropriate for the assessment of the systemic character of multi-object crimes. Besides, it is recommended to use such numeric parameters as the median of punishment, the increase coefficient of the median of punishment and the increase coefficient for criminal liability. The author uses special methodology to calculate the increase coefficients for criminal liability in all the cases of differentiating liability based on the features that determine the multi-object character of crime. The method of mathematical statistics is used to analyze the obtained coefficients: to determine the scope of their variation for crimes with a single attribute, and to calculate the range, arithmetic mean, median and mode of the values in the number series of coefficients for each of the attributes. The author concludes that a cross-cutting analysis of liability’s differentiation without taking into account the homogeneity of key corpus delicti of crimes makes it possible to state, with a certain margin of error, the existing public assessment of the degree of public danger of each of the aggravating attributes that determine the multi-object character of crime; to identify the cases of gross violations of the systemic principle for the differentiation of liability in the current legislation; to model the approximate guidelines for differentiating liability when criminal law norms are changed or a new criminal law is adopted. Scaling the coefficients for raising the level of criminal liability and studying their dynamics could be used as one of the methods for monitoring the criminal law policy of the Russian Federation.
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Ferreira, Nuno. "Putting the Age of Criminal and Tort Liability into Context: A Dialogue between Law and Psychology." International Journal of Children's Rights 16, no. 1 (2008): 29–54. http://dx.doi.org/10.1163/092755608x267157.
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AbstractThe concepts of 'liability age' and 'capacity responsibility' have been widely dissected by researchers in various fields. However, their application to both criminal and tort liability of children remains inconsistent. Furthermore, rarely has an interdisciplinary approach adequately dealt with these concepts and their impact on legal norms. This text investigates the notion of criminal and tort liability age in connection with the notion of capacity responsibility, in relation to children, and further questions the adequacy of the relevant legal norms. This endeavour to improve the applicable legal norms is supported by an analysis of the pertinent findings in the field of psychology, particularly in respect of the moral development of children. Informed by an excursion through the ideas of Piaget, Kohlberg, and Gilligan, among others, regarding the moral development of children, the text also serves to assess the impact of concepts of moral responsibility and maturity, in relation to the development of the legal norms, which determine the age of liability of children. The text concludes with a proposal for a criminal and tort liability age framework, based upon indicative/presumptive age milestones, and an integrated approach to all relevant circumstances in casu.
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Barsan, Magdalena Maria. "SELF DEFENSE IN THE NEW REGULATION. ELEMENTS OF COMPARED CRIMINAL LAW." Agora International Journal of Juridical Sciences 8, no. 4 (November 23, 2014): 13–18. http://dx.doi.org/10.15837/aijjs.v8i4.1594.
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Article aims to bring in the most important aspects of self-defense. The paper refers to issues of comparative criminal law regarding self-defense. The second chapter of the new Romanian Criminal Code describes those justifiable causes, certain circumstances which eliminate the second essential trait of crime - the unjustified character. The New Criminal Code chose to divide the causes which eliminate criminal liability in justifiable causes, those causes which make a deed lose its illegal character and non punitive causes, which remove the third essential trait of crime – accountability.
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Komarnytsky, Oleg. "FOREIGN EXPERIENCE OF APPLICATION OF JUDICIAL FINE AS ANOTHER MEASURE OF CRIMINAL LEGAL NATURE." Law Journal of Donbass 73, no. 4 (2020): 20–26. http://dx.doi.org/10.32366/2523-4269-2020-73-4-20-26.
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The article analyzes the provisions of the current Criminal Codes of the countries of the Romano-Germanic legal family on the conditions and procedure for applying a court fine as another measure of a criminal-legal nature. The article considers the normative possibility of exemption from criminal liability due to certain procedural circumstances. It is concluded that within the framework of modern criminal law of a small number of individual states, there are two main types of exemption of a person from criminal liability by paying him a judicial or a similar fine. It is concluded that the integral norms of modern foreign criminal law governing the application of a court fine provide for the possibility of practical implementation of: a) the principle of the minimum application of a particular criminal punishment; b) the principle of maximum possible assistance for an alternative, “non-criminal” outcome of the criminal proceedings. The main purpose and result of the application of a court fine is to release one or another offender from criminal liability in general and release him from one or another type of criminal punishment. The procedural part of the application of a court fine is the decriminalization of one or another act of the offender, which is carried out on the basis of the court taking into account the severity of the offense committed, the degree of preliminary law-abidingness of the offender, as well as the previous social, moral, material and other actions of the offender aimed at compensating his guilt before the victim and compensation by the offender for the harm caused by the crime. Within the framework of modern criminal law of a small number of individual states, there are two main substantive types of normative release of the offender from criminal liability by paying him a court or a similar fine: a) the application by the court of the court fine itself; and b) the application by the court of a fine associated with a change in the form of criminal liability.
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Leschenko, Vladimir. "Criteria for differentiation of criminal liability for fraud committed with the use of electronic payment means." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2021, no. 1 (April 9, 2021): 115–20. http://dx.doi.org/10.35750/2071-8284-2021-1-115-120.
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The necessity of legal protection of property relations that are formed through the use of electronic payment systems established by law is due to the rapid development of the digital economy sector. The increase in crimes committed with the use of information and telecommunications technologies, marked in recent years, demonstrates to a greater extent criminal activity in the field of mercenary crimes against property, where fraud occupies a special place. The variety of new forms of fraudulent activity indicates adaptation of this crime to modern socio-legal and economic realities. Fraud has penetrated into the digital economy and poses a serious threat to the financial security of participants in this field. These circumstances have an impact on the criminal law policy of the state, which is forced to respond to emerging threats by means of criminalization and differentiation of criminal responsibility. The article discusses the criteria for differentiating criminal liability for fraud committed with the use of electronic payment methods. The author highlights and describes characteristic of qualifying features as one of the means of differentiating criminal liability for fraud committed with the use of an electronic payment method. The challenge of the research is an attempt to assess the degree of public danger of objective and subjective signs that form the basis of qualifying circumstances, as well as to formulate proposals for clarifying their definition, legal and technical application in the construction of the criminal law norm.
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Семыкина, Ольга, and Olga Semykina. "Legal Regulation of Prohibition of Discrimination in Criminal Legislation of Russia and Moldova." Journal of Russian Law 2, no. 9 (September 23, 2014): 93–102. http://dx.doi.org/10.12737/5505.
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The article provides a comparative analysis of the legal measures to combat discrimination in the criminal legislation of the Russian Federation and the Republic of Moldova. Such a problem as regulation in the criminal law of antidiscrimination is active a large scale. In the Russian criminal legislation important legal guarantee the constitutional principle of equal rights and antidiscrimination is article 136 of the Criminal Code of the Russian Federation (Violation of equality of rights and freedoms of man and citizen). Meantime, as illustration the analysis of international antidiscrimination standards and trends to expand of these prescriptions in the legislation of CIS states, this criminal norm is far from perfect. The liability for discrimination can not be treated in direction with the commission of using official position. In our view, preventive legal prohibition in the article 136 of the Criminal Code of the Russian Federation will be significantly enhanced if to ask: 1) the return of criminal liability for discrimination of any individuals; 2) criminalization new aggravating circumstances.
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Tofaris, Stelios, and Sandy Steel. "NEGLIGENCE LIABILITY FOR OMISSIONS AND THE POLICE." Cambridge Law Journal 75, no. 1 (March 2016): 128–57. http://dx.doi.org/10.1017/s0008197315001002.
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AbstractThe police do not owe a duty of care to protect victims from the criminal acts of a third party when investigating or suppressing crime save in exceptional circumstances. This is justified as an application of the omissions principle and on several other grounds. The article argues that most of these justifications are unconvincing and it sets outs a positive rationale for the imposition on the police of a duty of care in respect of sufficiently proximate victims of a negligent omission. The scope of this duty can be coherently delimited by re-adjusting the existing framework of negligence liability of public authorities.
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Коміссаров, А. С. "DAMAGE TO LAW ENFORCED INTERESTS UNDER THE INFLUENCE OF FORCING IN THE SYSTEM OF CIRCUMSTANCES EXCLUDING CRIMINAL CRIME." Juridical science, no. 1(103) (February 19, 2020): 57–63. http://dx.doi.org/10.32844/2222-5374-2020-103-1.08.
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The article examines the legal nature and social purpose of the circumstances that exclude the criminal illegality of the act provided for in Art. 40 of the Criminal Code of Ukraine. It is argued that an accurate assessment of the legal nature of an action to cause harm in a state of (coercion) is associated with determining the place of these actions in a number of legally homogeneous behaviors. That is why the scientific literature ambiguously addresses the question of whether to consider physical and mental coercion in the group of circumstances that exclude the criminal illegality of the act, the grounds for which are public danger and illegality of the act. It is proved that when characterizing coercion as a circumstance that excludes the criminal illegality of the act, we can talk about the elements of the structure of coercion (coercion) the activities of the coerced person to comply with the requirement, which is not a mandatory element for coercion provided in the Special Part Criminal Code of Ukraine. The position is substantiated, according to which the division of coercion (coercion) into overcoming and insurmountable is inexpedient, because irresistible influence presupposes the lack of will of the victim, as well as the ability to be aware and control their actions.
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Viktorovich, Shevchyshen Artem. "Circumstances Which are the Basis Of Exemption of a Person From Criminal Liability for Corruption Offences in the Field of Professional Activities Related to Public Service." Internal Security 11, no. 2 (February 17, 2020): 201–10. http://dx.doi.org/10.5604/01.3001.0013.8306.
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The article examines the peculiarities of proving circumstances, which are the basis for the release of a person from criminal responsibility for corruption offences in the field of service activities related to the provision of public services. Substantive and procedural legal basis for such release has been found and the peculiarities of proving circumstances which are the grounds for the release of a person from criminal responsibility on the basis of article 49 and part 5 of article 354 of the Criminal Code of Ukraine have been analysed.
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Karimi, Fatemeh, and Mohammad Ali Ardebili. "Criminal Liability for other Behavior by Looking at Vote in Courts." International Journal of Multicultural and Multireligious Understanding 8, no. 9 (September 5, 2021): 220. http://dx.doi.org/10.18415/ijmmu.v8i9.3018.
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Despite the fact that crime and punishment are personal, in answer to the question of whether other persons besides the perpetrators of the crime are responsible? According to the circumstances, a positive answer can be given. Over time, with the qualitative growth of laws, Vicarious liability was formed. Until 2013, the criminal liability of legal entities existed exceptionally in scattered laws. Legal doctrine has proposed different theories in this regard, which in general can be divided into two categories: "Fault doctrine" and " Risk doctrine ". Iranian law, according to the votes of the courts before and after the Islamic Revolution, is more inclined to the first theory; At the same time, in a few votes, the opposite opinion can be seen. The purpose of this study is to investigate the status of the principle of criminal liability due to other behavior in Iranian law which is obtained based on the method of describing and analyzing legal materials and judicial opinions.
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Sheveleva, S. V. "LEGAL FIXING OF CRIMINAL CONCUSSION IN CRIMINAL LEGISLATION." Proceedings of the Southwest State University 21, no. 1 (February 28, 2017): 171–76. http://dx.doi.org/10.21869/2223-1560-2017-21-1-171-176.
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Criminal legislation concussion has various fixing forms: as a circumstance excluding crime act, as a punishment sign, as a crime sign of separate crime components. There are two types of concussion: concussion by circumstances and concussion by actions. The last always is done by a person. And it can be called criminal concussion. Such impact on other person as violence or threat, including threat of murder or causing heavy harm to health, mockeries and tortures is in the Criminal Code of the Russian Federation; destruction, damage or withdrawal of someone else's property or these actions threat; blackmail; use of material or other victim dependence; threat of data discrediting distribution or other data which can do essential harm to victim rights or legitimate his/her (his/her relatives) interests; bribery; persuasion; promises; deception or abuse of confidence; compulsion. The distinctive characteristic of such pressure is that criminals choos behavior seeking to avoid adverse consequences. It is possible to say that criminal concussion in criminal legislation can be fixed in such forms as threats, blackmail and violence. Persuasion, deception, deception or abuse of confidence aren’t forms of criminal concussion because victims' free will isn't limited.
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Gornostay, Alesia, Alona Ivantsova, and Tetiana Mykhailichenko. "MEDICAL ERROR AND LIABILITY FOR IT IN SOME POST-SOVIET COUNTRIES (BELARUS, KAZAKHSTAN, MOLDOVA, UKRAINE)." Wiadomości Lekarskie 72, no. 5 (2019): 877–82. http://dx.doi.org/10.36740/wlek201905127.
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Introduction: Infliction of harm to life and health due to medical errors is common for the whole world and post-Soviet countries, in particular. The problem of these errors is one of the most important in medical law, although there is no unified concept of it. A small number of sentences in cases of criminal negligence of medical professionals indicates a high latency and often unprovability of this crime in a number of post-Soviet countries. The aim: To disclose the objective and subjective prerequisites of a medical error, reasons for its occurrence, to establish the grounds for criminal liability of medical professionals in case they commit an error and to examine the judicial practice in this regard. Also, to define the concept and types of circumstances exempting criminal liability and their impact on criminal liability issues concerning medical professionals. Materials and methods: The study is based on the Belarusian, Kazakh, Moldavian and Ukrainian statutory acts as well as international acts, the European Convention for the Protection of Human Rights and Fundamental Freedoms, case law of the European Court of Human Rights (ECHR), national court judgments. Such methods as dialectical, comparative, analytic, synthetic and comprehensive have been used in the paper. Review: On the basis of the study, it has been established that there is no unified concept of a medical error, medical personnel are fairly brought to criminal liability only if they commit an unjustifiable error in the presence of all the mandatory elements of a crime provided for in the relevant article of the Criminal Code. At the same time, it is extremely difficult to prove existence of such an error. Besides, at the state levels, causes and mechanisms of occurring errors have not been revealed, they are not even discussed, which makes it impossible to outline measures to prevent them or reduce their frequency and degree of danger. Conclusions: The struggle against medical errors should encompass a number of such activities as standardization of clinical treatment protocols, further education of medical professionals and lawyers in regard to patient safety, thorough investigation of each incident in order to exclude a justifiable error or circumstances exempting criminal liability. Equitable, severe and uncompromising punishments for perpetrators should be an effective means preventing commission of crimes in medicine.
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Shchelkonogova, Elena. "The System of Grounds for Exempting a Person From the Legal Consequences of a Crime." Legal Concept, no. 1 (April 2021): 155–60. http://dx.doi.org/10.15688/lc.jvolsu.2021.1.23.
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Introduction: the grounds for exemption from criminal responsibility, punishment, and the recognition the act that has caused harm to the object of criminal law protection as non-criminal, are essential for a fair legal assessment of a person’s behaviour. In this connection, the author of the paper aims to study the grounds for not applying the legal consequences of a crime (act) to a person. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the methods of historicism, consistency, analysis and comparative law. Results: the author’s position grounded in the work is based on the legislation and the opinions of the competent scientific community on the question of why certain grounds are combined by the legislator into separate chapters and are endowed with common features, and other grounds belong to different grounds for the release of a person. With the help of the legal analysis of the provisions of the theory of law, the differentiation of the characteristic features of the grounds for not bringing a person to criminal responsibility is carried out. The questions of the legal regulation of not only various types of grounds for the release of a person, but also the legal consequences of committing a crime are raised. The concept of circumstances precluding criminal liability in connection with the voluntary refusal to commit a crime is formulated. Conclusions: the study establishes that a person may be exempted from criminal liability, in connection with the absence of the constituent elements of offence (insanity, infliction by innocence) in his act, and the grounds that are not associated with crime, such as regulated by Chapter 11 of the Criminal Code. However, the circumstances that preclude the criminality of the act, voluntary refusal, as well as the insignificance of the act are not directly enshrined in the Code as the grounds for exempting from criminal liability due to the absence of corpus delicti, however, the text of the articles of the Code states that the act is not a crime.
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Dmitrenko, Andrey P., and Xuan Truong Trinh. "THE HISTORY OF THE DEVELOPMENT OF VIETNAMESE LAW GOVERNING THE CIRCUMSTANCES EXCLUDING CRIMINAL ACTS." Bulletin of the Moscow State Regional University (Jurisprudence), no. 1 (2020): 74–78. http://dx.doi.org/10.18384/2310-6794-2020-1-74-78.
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Avdeyev, Mikhail Alekseyevich, and Anastasiya Sergeyevna Shtrants. "QUALIFYING SIGNS GENERAL CHARACTERISTIC AND THEIR IMPORTANCE IN CORPUS DELICTI STRUCTURE PLANNING." Current Issues of the State and Law, no. 9 (2019): 66–75. http://dx.doi.org/10.20310/2587-9340-2019-3-9-66-75.
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We consider qualifying signs of the crime as one of the forms of differentiation of criminal liability, reflecting the qualitative characteristics of the criminal act. Also we analyze the doctrinal approaches to the two most controversial issues of the theory of criminal law concerning the nature and content of qualifying signs: their correlation with the circumstances aggravating the punishment, as well as a constructive connection with the corpus delicti. We draw a conclusion that such qualifying signs as the criminal law category have a dual nature. On the one hand, they are comparable to the aggravating circumstances listed in article 63 of the Criminal Code of the Russian Federation, on the other hand, they are expressed in the norms of the Special part of the Criminal Code of the Russian Federation as constructive signs of corpus delicti the strengthening of the level of criminal repression in relation to the basic composition of the relevant crime. In particular it is a constructive connection with the corpus delicti expresses the most popular in the literature classification of qualifying signs of the circumstances relating to: the object and the objective side, the subject and the subjective side of corpus delicti. We propose interpretation of the concept of qualifying signs, which are indicated by the circumstances, which is a constructive element of the corpus delicti, which indicate increased relative to the basic corpus delicti of public danger of the act and the identity of the person committing the act.
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Shannon Hoctor. "Voluntary Withdrawal in the Context of Attempt – A Defence?" Obiter 42, no. 1 (May 2, 2021): 148–61. http://dx.doi.org/10.17159/obiter.v42i1.11062.
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Once a crime has been committed, full repentance and restoration do not have any bearing on liability, but may be taken into account in mitigation of sentence. On the other hand, there is no question of criminal liability ensuing for an attempt at a crime if there is a withdrawal from the envisaged crime while still in the stage of preparation, and before, in South African law, reaching the watershed moment of the “commencement of the consummation”. However, what occurs between the moment when the attempt begins, and the moment when the crime has been completed, where there has been a withdrawal from the criminal purpose, is more contested terrain. The disagreement does not apparently arise in the South African case law, where the few judgments that refer to this question have consistently held that where the accused withdraws after the commencement of the consummation of the crime, there will be attempt liability and, at best, the accused may rely on the abandonment as a mitigating factor in sentencing. However, as is discussed, prominent South African academic commentators, along with comparative sources in both the civil-law and common-law jurisdictions, demur from such an “unyielding analysis”, and would regard such withdrawal as giving rise to a defence to criminal liability. Which approach ought to be applied in South African law?
The question may be posed as to how to categorise a defence of voluntary withdrawal? It is neither a justification ground nor a ground excluding fault, but rather a ground excluding punishment. The uniqueness of the defence is demonstrated in that the accused has already met all the requirements for liability, and thus it is not an intending criminal, but an actual criminal who is being considered. This is at least true of the common-law approach (also adopted by South African law), where a two-stage approach is applied to the trial, relating first to establishing criminal liability and followed, if guilt is so established, by an inquiry into sentence. At the outset, it may be stated that the view that is taken in the discussion that follows is that there is no good reason to treat voluntary abandonment as a special defence. As Yaffe has stated, to grant a defence on the basis of abandonment is to mistake the absence of a reason to issue a particular sanction rather than a lower one for a sufficient reason to issue no sanction at all.In the discussion that follows, the current case law is examined, whereafter the alternative approach contended for by some academic writers (and used in other jurisdictions) is discussed; the arguments for and against a renunciation defence are set out, before these aspects are drawn together in a final concluding analysis.
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Nikolaeva, Zhanna A. "ON THE DEFECTS OF LEGAL REGULATION OF THE CONCEPT OF LIABILITY FOR TAX OFFENCES." Proceedings of the Institute of State and Law of the RAS 15, no. 1 (April 30, 2020): 164–82. http://dx.doi.org/10.35427/2073-4522-2020-15-1-nikolaeva.
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The author analyzes the content of interrelated tax norms, administrative and criminal laws, which constitute the concept of liability for tax offences. The analysis makes it possible to identify the elements that cause non-compliance with the foundations of legal liability in criminal proceedings: its inevitability, equality of everyone before the law and the court, justice. Representatives of small and medium- sized businesses are placed in unequal, discriminatory circumstances in comparison with large businesses. In addition, the legislation on taxes and fees contains provisions which create obstacles for the operation of criminal and criminal procedure laws. Many instances of tax evasion, the non-payment of fees and/or insurance fees in large and especially large amounts revealed by tax services do not become known to investigative bodies. In this case, the principle of the priority of sectoral legislation ceases to work, since in criminal proceedings the provisions of the Tax Code of the Russian Federation cancel out the effect of the norms which are common to all types of crimes and express the foundations of a particular sector of law. This paper substantiates the need to improve the concept of liability for violations of the legislation on taxes and fees.
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Chistyakov, Aleksey, and Saule Naurzalieva. "Criminal liability of juveniles in the Republic of Kazakhstan." International penitentiary journal 2, no. 1 (April 30, 2020): 12–26. http://dx.doi.org/10.33463/2712-7737.2020.02(1-3).1.012-026.
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The article reflects the study of juvenile delinquency in the Republic of Kazakhstan and their criminal responsibility. The scientific novelty of the research is that it was conducted on the basis of the new criminal legislation of the Republic of Kazakhstan in 2014. Therefore, the complex of issues, that were previously the subject of various studies in the light of modern realities and trends of criminal law policy of the Republic of Kazakhstan, has received a new interpretation and argumentation from the perspective of the latest opportunities for study. First, the new legislative structure for determining the basis of criminal liability (Article 4 of the Criminal code of the Republic of Kazakhstan) required a reinterpretation of the content of circumstances that lead to emergence of criminal liability among juveniles. Secondly, the legally updated content of grounds for criminal liability of juveniles in the Republic of Kazakhstan has led to an update of the quality of criminal law relations that arise between juvenile offenders and state bodies, which also need a new scientific reinterpretation. Third, the new legal concept of the basis of criminal liability presupposes the existence of a new, in relation to the previous, content of the basis for the implementation of criminal liability of juveniles. Finally, the new criminal legislation of the Republic of Kazakhstan, along with the previously existing one, has introduced new forms and types of implementation of criminal liability of juveniles, which need an updated scientific and legal analysis. Its results and conclusions, obtained personally by the author, can be regarded as having scientific novelty for the above reasons. In addition, on the basis of the theory and practice research of criminal responsibility among juveniles in the Republic of Kazakhstan, the paper formulated proposals for improving the criminal legislation of not only the Republic of Kazakhstan, but also the Russian Federation, which also have a novelty. The theoretical significance of the research is to increase and systematize knowledge about the criminal liability of juveniles due to the presence of a new basis of criminal responsibility that has not been previously developed by the Russian criminal law science. The results of scientific understanding of new forms and types of implementation of criminal liability of juveniles, introduced by the Criminal code of the Republic of Kazakhstan in 2014, such as the obligation to apologize to the victim and the establishment of probation control, have theoretical significance. The conclusions, suggestions and recommendations contained in this work enrich the scientific understanding of the features of criminal liability of juveniles in the Republic of Kazakhstan. The practical significance of the work is that the provisions and recommendations contained in it can be used both in the Republic of Kazakhstan and in the Russian Federation: in the process of standard-setting activities in improving the norms of Chapter 6 of the Criminal code of the Republic of Kazakhstan and the norms of Section V of Chapter 14 of the Criminal code of the Russian Federation; in the work of specialized inter-district courts for juveniles, considering cases against juveniles and assigning criminal penalties to them; by authorities and administration in the development of preventive measures.
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Bapanova, T. T. "Issues of competition rules on aggravating and mitigating circumstances of criminal liability and punishment." BULLETIN of L.N. Gumilyov Eurasian National University. Law Series 128, no. 3 (2019): 85–91. http://dx.doi.org/10.32523/2616-6844-2019-128-3-85-91.
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Kubiak, Rafał. "Criminal liability for performing laboratory diagnostics without necessary authority." Diagnostyka Laboratoryjna 54, no. 3 (September 20, 2018): 185–90. http://dx.doi.org/10.5604/01.3001.0013.7714.
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The laboratory diagnostician’s profession is classified as the so-called professions of public trust. One of their features is limiting access to the profession through, among others, determining specific qualifications, education and skills, verified by appropriate bodies in the legal procedure, and awarded with so-called right to practice. The purpose of this procedure is allowing professional activities to be carried out only by persons who will guarantee their necessary quality. This requirement is particularly important in the case of medical employees, whose activities determine the life and health of patients. The Polish legislator secured the implementation of these requirements by means of the penal code. In art. 71 of the Act on laboratory diagnostics, a prohibited act has been described, which included performing laboratory diagnostic activities by a person who does not possess the authority do so. This is called a halved act, i.e. depending on the degree of social harm, may be considered an offense (section 1) or felony (section 2). This article discusses the terms of criminal liability for this act, including the circumstances qualifying it as a felony, in the form of actions to obtain a financial advantage or misleading as to the possession of authority. It explains who could be the perpetrator of this act and why the protection of criminal law was restricted only to activities performed in the laboratory. Penalties and criminal measures that can be imposed for this act, as well as the procedure for its prosecution, were also indicated. Deficiencies of this regulation and proposals for its amendment are also presented. The argument has been enriched by judicial decisions illustrating the presented theses.
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Skripchenko, Nina Yu. "Consequences of failure to pay a court fine." Vestnik of Saint Petersburg University. Law 11, no. 3 (2020): 639–50. http://dx.doi.org/10.21638/spbu14.2020.307.
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The article discusses issues that arose during enforcement of the new grounds for exemption from criminal responsibility, enshrined in 2016, in connection with a court fine (Article 76.2 of the Criminal Code). Despite the criticism of its legislative regulation, demand for a new way of ceasing criminal prosecution began to appear in connection with the non-payment of a fine. Having determined the voluntary execution of a court fine, the legislator did not settle the issue of the further execution of the fine in cases where there are valid reasons for non-payment. After analyzing the existing proposals to solve this problem, the author confirms that the elimination of the gap would be facilitated by the legislative obligation of the bailiff to establish the circumstances by which the judicial penalty is not paid, as well as the addition of the list of decisions made by the bailiff to suspend enforcement proceeding. Analysis of judicial practice showed that Art. 76.2 of the Criminal Code began to be applied in cases where the court has justification for implementing less onerous grounds for the defendant to be exempt from criminal liability. Legislative duplication of the conditions under which criminal prosecution can be terminated for various reasons calls into question the wide alternative of the latter, as well as the embodiment of the idea of humanizing criminal law, which is the basis for securing a new ground for exemption from criminal liability. The article substantiates the proposal to supplement the Resolution of the Plenum of the Supreme Court dated June 27, 2013 with a provision allowing the release of a person from criminal responsibility with a judicial fine in cases where the court has no basis for suspending criminal prosecution for unconditional types of exemption from criminal liability. The author draws attention to the gap in the legislation, part 3 of Article 78 of the Criminal Code, which is related to the renewal of the statute of limitations for criminal liability when an individual avoids paying a court fine.
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Ambrus, István. "Finkey Ferenc egyes nézetei a bűncselekménytan köréből." Erdélyi Jogélet 4, no. 1 (June 10, 2021): 3–13. http://dx.doi.org/10.47745/erjog.2021.01.01.
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In my article, I examine some of legal opinions of Ferenc Finkey’s with regard to substantive criminal law, from the perspective of today’s criminal lawyer. I present the concept of criminal offence in Finkey’s works, dealing with the issues of unlawfulness and guilt, also pointing to aspects not discussed in the previous literature. In the case of the act of trying to kill a dead person, my opinion is that it is more proper to establish criminal liablity for an unsuitable attempt of homicide instead of excluding liability. Regarding to the continued offence, I accept the the young Finkey’s position, while with regard to the concurrence by one act, I do not agree with Finkey at all. My conclusion is that Ferenc Finkey’s books and articles would be welcome for today’s criminal lawyers to get acquainted with them as well.
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Avdasheva, S., and A. Shastitko. "Economics of Criminal Sanctions on Antitrust Law Violation." Voprosy Ekonomiki, no. 1 (January 20, 2010): 129–42. http://dx.doi.org/10.32609/0042-8736-2010-1-129-142.
Full textAbstract:
As of October 30, 2009 changes and amendments in the content of the article 178 of the Criminal Code of Russian Federation have been enacted. They allow to extend the use of criminal sanctions against violators of antitrust law in order to make the enforcement of legal rules supporting competition more effective. At the same time mistakes in the process of enforcement can decrease the efficiency of antitrust in the sense that under the given level of deterrence the burden of type I errors will be higher than the acceptable one. The goal of the article is to discuss the circumstances that can influence the effectiveness of criminal liability.
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Metelsky, Pavel, and Nadezhda Verchenko. "Criminal Liability for Knowingly Unlawful Sentence, Decision or Other Judicial Act." Herald of Omsk University. Series: Law 17, no. 3 (October 19, 2020): 93–102. http://dx.doi.org/10.24147/1990-5173.2020.17(3).93-102.
Full textAbstract:
Introduction. The publication is devoted to the corpus delicti, provided for by Art. 305 of the Criminal
Code of the Russian Federation, which, being, in fact, a special type of official abuse, stands out as the direct
object of a criminal assault and a special subject, since it can be committed exclusively by professional judges.
The main features of the objective and subjective parties, qualifying signs of the offense are revealed, some
problems that arise when applying this criminal law are outlined. Purpose. The goal is to analyze the design
features of the crime and issues that arise when applying this rule. Methodology. The method of a formal legal
analysis of the norms of the criminal law and theoretical provisions on problems directly related to the
application of this rule was used. Results. The public danger of a criminal act that undermines the very
foundations of justice is obvious, in connection with which it stands out as an independent crime by all the
Russian Criminal Codes, starting in 1922, the history of criminal responsibility for its commission can be traced
in our country in general since the 16th century. The current criminal law prohibition is characterized by
considerable complexity, due to both the blanket nature of the disposition of the norm itself and the presence of
discrepancies in the understanding of the signs embodied in it. Conclusion. The implementation of criminal
liability for this crime involves the establishment of not only circumstances directly related to the corpus delicti
that lie in the criminal law field. The subject of an infringement, a judicial act, must be subjected to procedural
review without fail, after which, subject to the consent of the Higher Qualification Collegium of Judges of the
Russian Federation, in fact, and the mechanism of criminal prosecution is “launched”. That is, a truly
“multi-way” combination of actions is necessary, carried out in several stages, and the problem itself to some
extent becomes interdisciplinary, going beyond only criminal law.
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Reid, Elspeth. "Liability for Wrongful Deprivation of Liberty: Malice and Police Privilege." Edinburgh Law Review 24, no. 2 (May 2020): 175–201. http://dx.doi.org/10.3366/elr.2020.0626.
Full textAbstract:
Infringement of liberty has long been regarded as a delict which requires to be compensated, but public officers may in some circumstances be protected against liability where freedom has been “lawfully abridged” in conformity with the rules of criminal procedure. However, the boundaries of this form of privilege have not always been delineated with clarity. This article will argue that they remain unclear following the Outer House decision in Whitehouse v Gormley. In particular it questions the basis for requiring the pursuer to prove malice where a claim is made against police officers for unlawful detention or arrest.