Journal articles on the topic 'Theory of aggravating circumstances'
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1
Keya, Antoni. "Interpreting Perlocutionary Speech Acts on Aggravation and Mitigation Circumstances: The Case of the former ICTR." Umma The Journal of Contemporary Literature and Creative Art 11, no. 1 (June 30, 2024): 50–79. http://dx.doi.org/10.56279/ummaj.v11i1.3.
Abstract:
This article attempts to interpret the interactivity between force of utterance and aggravating and mitigation circumstances during the ICTR sentencing process. This process which is essential in determining whether the judges’ evaluative comments aimed to address aggravation and mitigation circumstances are predictive of the ensuing sentences. The data for this article were accessed from the 1995-2000 Basic Documents and Case Law CD-ROM of the then International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, focusing on the then thirteen (13) completed cases retrievable from http://www.ictr.org. Informed by the Speech Act Theory and using Wordsmith to determine the frequency of linguistic terms at airing aggravation, the study was done on seventy-two thousand words, paying attention to interpreting the language used to address aggravating and mitigating circumstances. Findings show that emotive evaluations are not a major characteristic in sentencing, and where in use, they do not predict the harshness of punishments given.
2
Lapshin, V. F., and N. N. Kemova. "Hooligan motivation as a means of differentiation of criminal responsibility." Eurasian Scientific Journal of Law, no. 4 (5) (January 4, 2024): 48–58. http://dx.doi.org/10.46914/2959-4197-2023-1-4-48-58.
Abstract:
In modern criminal law theory, there is no consensus on the optimal and necessary number of means of differentiating of criminal responsibility. Therefore, lists of types of qualifying signs and circumstances aggravating punishment are still in the process of being formed. Hooligan motives are fairly common motive for committing a crime, but so far it has not been considered as one of the aggravating circumstances, which creates conditions for deviation from the principle of justice when imposing punishment for a committed crime. The purpose of the study is to substantiate the recognition of a crime committed from hooligan motives as an aggravating circumstance. The recognition of a hooligan motive as an aggravating circumstance will allow systematizing its use as both a qualifying feature of certain elements of crimes and a circumstance, the establishment of which implies an increase in the severity of the chosen measures of criminal responsibility. This will contribute to the issuance of fair judicial decisions. It is proved that any crime committed out of hooligan motives is characterized by an increased degree of public danger. If the corpus delicti does not include hooligan motives as a qualifying feature, then this motive should be taken into account when sentencing. The results of the study can be used for research in the field of means of differentiation and individualization of criminal liability. The rationale presented in the work can be taken into account when preparing a draft law on supplementing Art. 63 of the Criminal Code of Russia (hereinafter referred to as the Criminal Code) is another aggravating circumstance.
3
Arum, Debora Sekar. "Best practice in aggravating and mitigating factors: Assessment of court decisions on corruption." Integritas : Jurnal Antikorupsi 8, no. 2 (June 13, 2023): 177–84. http://dx.doi.org/10.32697/integritas.v8i2.910.
Abstract:
Many court decisions on corruption have contained aggravating and mitigating factors that have left the public wondering. This research aims to find out the standard of best practice in aggravating and mitigating factors on corruption cases and measure the fulfillment of those standards in various court decisions. This normative research utilises the statute, case, and conceptual approaches as well as the qualitative analysis method. The research concluded that, (1) circumstances outside the elements of the crime, (2) circumstances that reflect the seriousness or dangerousness of the crime and the defendant, (3) the motive to commit such crime including internal or external reasons (Correspondence Inference Theory), (4) circumstances related to or surrounding the offence, and (5) circumstances related to the personal condition or reputation of the defendant in the community are the standards of best practice in aggravating and mitigating factors; and, that none of the court decisions examined in this research have cumulatively fulfilled those standards.
4
Severskii, Georgii Yurievich. "Criminal-legal significance of minority of the injured as an aggravating circumstance." Право и политика, no. 5 (May 2023): 30–36. http://dx.doi.org/10.7256/2454-0706.2023.5.40672.
Abstract:
The article considers the criminal law significance of signs of infancy and minority of the victim as an aggravating circumstance in the criminal legislation of the Russian Federation. Thus, the subject of research is the social relations that characterize the named circumstance. As part of the work, the author studies various doctrinal approaches to the definition of the concepts of "juvenile" and "minor" in the context of the issues under consideration. In addition, the study touches upon the law enforcement problems of taking into account the infancy and minority of the victim when qualifying a socially dangerous act. The author notes that the inclusion of the minority of the victim among the circumstances under consideration is dictated by the special danger of the person committing such an attack, his inhumanity, the baseness of the motives that prompt him to commit a crime. By analyzing the legal framework, statistical data and provisions of the theory of criminal law, controversial and problematic aspects of the application of the norms of the current criminal legislation in the context of taking into account the minor age of the victim as an aggravating circumstance are revealed. The paper notes that these signs affect the nature and degree of public danger of a crime, differentiating responsibility, being important for qualifying a criminal act and imposing a just punishment. The author proposes recommendations for changing the current criminal law in the relevant part. The author notes that the proposed changes will make it possible to improve the process of individualization of the punishment imposed on the guilty, and will also allow an objective assessment of the degree of public danger of the deed when the court decides the sentence.
5
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.
Abstract:
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.
6
Sinaga, Cindy Debora, Somawijaya Somawijaya, and Agus Takariawan. "Implications of Correspondence Inference Attribution Theory & Behavioral Jurisprudence Theory: Judge's Conciderations on Conscience." SASI 28, no. 1 (April 14, 2022): 78. http://dx.doi.org/10.47268/sasi.v28i1.745.
Abstract:
Introduction: This article analyzes the implications of the attribution correspondence inference theory and whether the urge of conscience as affect in the Defendant is the reason for the abolition of the sentence? also behavioral jurisprudence theory on judges' considerations, where it's often a discourse in Indonesia. It is necessary to explore the human values contained in Defendant.Purposes of the Research: The objectives of the research are: First, to provide an analysis of how the theory of attribution correspondence inference to the judge's considerations in determining the circumstances that form the basis of sentencing and knowing whether the urge of conscience as affect in the Defendant is the reason for the abolition of the crime? Second, providing an analysis related to the urgency of behavioral jurisprudence theory in creating fair decisions based on the conscience of the judge.Methods of the Research: The normative legal research method uses a statutory approach, a conceptual approach, and comparisons with different legal system which are based on library research in collecting research legal materials.Results of the Research: The results are: First, the attribution correspondence inference theory can be used as consideration for judges’ considerations in determining to mitigate and aggravating circumstances in Indonesia and with a study of criminal law and the theory that the urge of conscience as affect the defendant can be used as a consideration of mitigating circumstances for the defendant, as well as conditional punishment. Second, the behavioral jurisprudence theory approach has urgency in understanding the behavior of a person doing an act or the judge in making a fair decision.
7
Wall, Joseph, Timothy J. Fogarty, and Jodi Gissel. "Why Punishment Does Not Fit the Crime: Experimental Evidence That Situational Circumstances Crowd Out Damage Done." Journal of Forensic Accounting Research 5, no. 1 (August 4, 2020): 142–76. http://dx.doi.org/10.2308/jfar-19-019.
Abstract:
ABSTRACT Regulators desire punishment that restores individuals to monetary positions before the damage and deters future violations. Thus, enforcement effectiveness is partially a function of punishment severity. Under the Securities and Exchange Commission's oversight, the Financial Industry Regulatory Authority provides enforcement and punishment guidelines for securities fraud cases. However, motivation crowding theory suggests extenuating and aggravating circumstances may complicate punishment. We investigate the concern that individuals charged with punishing securities fraud might be excessively tolerant, illustrated by recommended sanctions. Using two samples of participants—compliance examiners and securities arbitrators—in an experimental task that manipulates the fraudster's motivation, history, and personal gain, we find participants may be overly influenced by situational circumstances. Further, participants recommend monetary sanctions that fail to achieve regulators' restoration goals. We discuss practical implications of these findings for regulators. Further, we illustrate the need to extend motivation crowding theory to consider factors associated with non-direct financial benefits.
8
Sobir Qizi, Azizova Shalola. "Issues Of Responsibility For The Use Of Violence Against Medical Personnel In Connection With The Performance Of Their Official Duties." American Journal of Political Science Law and Criminology 03, no. 09 (September 17, 2021): 26–29. http://dx.doi.org/10.37547/tajpslc/volume03issue09-05.
Abstract:
The article analyzes the relevance of protecting the rights of medical workers in the Republic of Uzbekistan, as well as certain elements of threats and violence in connection with the performance of their duties as medical workers, increasing the criminal liability of those guilty of violence against medical workers. The article analyzes the components of responsibility for threats and violence against medical personnel in the legislation of some foreign countries, aggravating circumstances.
9
Kamalova, Dildora. "ISSUES OF CLASSIFICATION OF THE OFFENSE AS A CRIMINAL ASSASSINATION AND DISTINGUISHMENT FROM SIMILAR CRIMES." Jurisprudence 3, no. 4 (August 28, 2023): 122–32. http://dx.doi.org/10.51788/tsul.jurisprudence.3.4./qfoi3219.
Abstract:
This article analyzes the signs of a specific type of attempt–an “imaginary attempt–and questions about its qualification. The author developed the author’s definition of the concept of “imaginary attempt”. It is noted that crimes where the criminal intent of a person is aimed at the onset of the consequences provided for by the aggravating (qualifying) composition, however, when the act was committed, the consequences of the main corpus delicti occurred, without signs of an aggravating corpus delicti, should be understood as a “sham attempt”. The author, on the basis of the theory of criminal law and materials of judicial practice, analyzes the signs and features of these types of crimes and questions of their qualifications. In particular, the absence of a unified approach to the qualification of the attempted murder of two or more persons, the attempted murder of a woman who was known to be pregnant, and the circumstances that should be taken into account when assessing these types of acts have been comprehensively studied. It also highlights in detail the distinctive aspects from attempted murder (Art. 25, 97 of the Criminal Code) of some similar crimes, in particular, threats to kill or use violence (Art. 112 of the Criminal Code), intentional infliction of grievous bodily harm (Art. 104 of the Criminal Code), and their qualifications.
10
Budyn-Kulik, Magdalena. "Wpływ osobowości sprawcy na ocenę podstaw i zakresu odpowiedzialności karnej." Nowa Kodyfikacja Prawa Karnego 43 (May 16, 2017): 45–61. http://dx.doi.org/10.19195/2084-5065.43.5.
Abstract:
The wrong-doer’s personality influence on the assessment of criminal liability grounds and scopeA criminal act is done in certain circumstances, but it refl ects also the wrong-doer’s personality and his/her social dangerousness. The Criminal Code of 1997 replaced the term “social dangerousness” with “social harmfulness”. Art. 115 § 2 CC points out the circumstances that should be considered while assessing the level of social harmfulness; with no personality-like circumstance mentioned there. Such factor is indirectly hidden in the phenomena of motivation. While one considers acts that are done mostly because of some external situation-related factors, the wrong-doer’s personality does not matter. One’s personality should be considered as far as involuntary acts are concerned. The wrong-doer’s personality is interesting for criminal law purposes, because of some terms the Polish CC uses, like personal characteristics Art. 10 § 2, 10 § 4, Art. 21 § 1 i § 2, Art. 58 § 2a, Art. 66 § 1, Art. 69 § 2, Art. 77 § 1, Art. 53 § 2 and motivation Art. 40 § 2, Art. 53 § 2, Art. 115 § 2, Art. 148 § 2 point 3. The term “personal characteristics” is wider than “personality”. There are many psychological theories that try to explain what personality is Freud’s, factors, cognitive, social learning, humanistic and systematic theory. Personality is a fairly well-fixed regulation system that starts to function about the age of 21. It consists of many elements. Personality can change drastically during lifetime under certain traumatic circumstances, organic brain changes or addictions to psychoactive substances. The act of a wrongdoer may express his/her typical characteristics personality but it may not be so typical for him/ her, either. Usually, when it is typical the court treats it as an aggravating circumstance and when untypical — as a mitigating one. Personality issues need some specialist knowledge. Personal characteristics are important as far as criminal liability is concerned. Otherwise, their presence should be limited in the Criminal Code and used only in Art. 10 § 2 and Art. 53. They should be considered as far as the period of punishment execution and probation measures are concerned.
11
Cahya Ningrum, Bella, I. Ketut Siregig, and Suta Ramadan. "ANALISIS YURIDIS PENGGUNAAN BOM DALAM PENANGKAPAN IKAN DI WILAYAH PERAIRAN LAUT PULAU SEBUKU KABUPATEN LAMPUNG SELATAN (Studi Putusan Nomor : 321/Pid.Sus/2021/Pn.Tjk)." IBLAM LAW REVIEW 2, no. 1 (January 31, 2022): 73–91. http://dx.doi.org/10.52249/ilr.v2i1.52.
Abstract:
The illegal act of fishing with explosives is currently regulated by Law No. 45 of 2009 on Fisheries, which states several legal provisions, including that waters are under the sovereignty and jurisdiction of the Unitary State of the Republic of Indonesia, as well as the Indonesian Exclusive Economic Zone, and are based on international provisions containing fish resources and potential fish farming land. In this work, a normative juridical approach and an empirical approach were used as research methods. Data is gathered through library research and field studies. The Defendant employed explosives in the shape of 6 (six) big bottles and 4 (four) tiny bottles obtained by purchasing 4 (four) kilograms of Ampo powder and then assembling them in a way that they could be used to bomb fish in order to carry out his action. The imposition of a crime in this case has the goal of not only punishing people who commit crimes, but also of fostering and educating people, so the judge believes that the sentence imposed on the defendant was appropriate and commensurate with his actions, based on aggravating and mitigating circumstances.
12
Abzalova, Khurshida Mirziyatovna. "SOME MATTERS OF IMPOSITION OF PUNISHMENT FOR PREPARATION FOR PREMEDITATED MURDER IN THE CRIMINAL CODE OF THE REPUBLIC OF UZBEKISTAN." International Journal of Legal Studies ( IJOLS ) 4, no. 2 (December 30, 2018): 159–67. http://dx.doi.org/10.5604/01.3001.0013.0011.
Abstract:
This article analysis some aspects of assignment of punishment for preparation for premeditated murder on the basis of the theory of criminal law, draws the corresponding conclusions and develops recommendations in the criminal legislation of the Republic of Uzbekistan. According to article 58 of Criminal code of the Republic of Uzbekistan at assignment of punishment for preparation for crime, in particular to premeditated murder (dolus premeditatus), court is being guided by the general beginnings of assignment of punishment, considers also weight of crime, extent of implementation of criminal intention and the reason owing to which crime was not ended; punishment for preparation for simple premeditated murder should not exceed three quarters of the maximum punishment prescribed by the relevant article of the Special part of Criminal code of the Republic of Uzbekistan; the rule about the maximum punishment (three quarters of the maximum punishment prescribed by the relevant article of the Special part of Criminal code of the Republic of Uzbekistan) is not applied at assignment of punishment for preparation for premeditated murder under the aggravating circumstances; for preparation for premeditated murder sentence in the form of lifelong imprisonment cannot be imposed.
13
Kozachenko, Ivan Ya, and Evgenia E. Melyukhanova. "SENTENCING FOR A CRIME COMMITTED IN COMPLICITY." Oeconomia et Jus, no. 2 (June 26, 2023): 71–85. http://dx.doi.org/10.47026/2499-9636-2023-2-71-85.
Abstract:
Introduction. The Institute of complicity in the science of the criminal law has received and continues to receive close attention. Signs of complicity, forms and types of complicity, rules to qualify crimes committed in complicity, and much more are discussed in detail. However, as a rule, special attention is not paid to the issues of sentencing for a crime committed in complicity. The article deals with the problems of sentencing for a crime committed in complicity. The purpose of the study is to analyze the theory and practice of sentencing for a crime committed in complicity, to formulate their own proposals for improving the sentencing of accomplices. Materials and methods. The study is based on the provisions of the Criminal Code of the Russian Federation on imposing punishment for a crime committed in complicity, as well as the practice of their application. The research methodology includes the use of such methods as axiological, logical, methods of analysis and synthesis, which makes it possible to significantly expand the subject of research. However, due to the specifics of the study, the methods of system-structural and functional analysis are used as the main ones. Study results. There are no rules in the criminal law for imposing punishment to accomplices of a crime. The authors analyzed Article 67 of the Criminal Code of the Russian Federation, dedicated to imposing punishment for a crime committed in complicity. The specified norm contains only evaluation categories. Therefore, the guideline specified in Article 67 of the Criminal Code of the Russian Federation when imposing punishment for a crime committed in complicity cannot be considered suitable for the practice of sentencing. Qualifying signs related to complicity are considered separately. Committing a crime as part of a certain criminal group entails imposing a more severe punishment. The authors analyzed the proposals available in the scientific literature concerning the introduction of rules for sentencing as part of a criminal group. However, the proposals are based solely on analogy with the special rules of sentencing already available in the criminal law, there is no justification for the limits of adding greater punitive measures: three-quarters, two-thirds, three-fifths, one-third, etc. It seems that this approach is not based on factual data confirming the specific limits of adding greater punitive measures. The analysis of judicial practice of sentencing for a crime committed as part of a criminal group leads to the conclusion that there are problems due to the presence of a conflict in the criminal law: the presence in the criminal law of such an aggravating circumstance as committing a crime as part of a group of persons, a group of persons by prior agreement, by an organized group or a criminal community (criminal organization) and the similarly-named qualifying signs of the elements of crimes provided for in the Special Part of the Criminal Code of the Russian Federation. According to the authors, it is necessary to eliminate the conflict between circumstances related to complicity, aggravating punishment, and similar signs of the corpus delict by excluding qualifying features of articles of the Special Part of the Criminal Code of the Russian Federation, identical to circumstances aggravating punishment, while providing for certain rules for sentencing for a crime committed as part of a criminal group. Conclusions. Since the qualified composition of a crime as part of a criminal group, as a rule, changes the category of the crime to a more serious one, in the case of a person committing a crime as part of a group of persons, a group of persons by prior agreement, an organized group or a criminal community (criminal organization), the court should be able to change the category of the crime to a more serious one and inflict a stricter punishment than stipulated by the relevant article of the Special Part of the Criminal Code of the Russian Federation for the crime committed.
14
Морозова, Наталья, and Natalya Morozova. "Complicity in Commission of Administrative Offence." Journal of Russian Law 2, no. 8 (September 22, 2014): 113–25. http://dx.doi.org/10.12737/5283.
Abstract:
The question of possible complicity of the offenders committing administrative violations is controversial. In the Code of Administrative Offences of The Russian Federation has no notion of complicity, at the same time an administrative offences can be committed by several persons, that is confirmed by the analysis of article 14.32 of the Code. In this article the author proposes to introduce institution of complicity by means of joint participation into Code of Administrative Offences of The Russian Federation using experience of the theory of criminal law. The article considers the possibility of complicity between two individuals, two artificial bodies or artificial body and an individual entrepreneur; and also between the artificial body and its employee — under certain conditions. The punishment for each of the participants shall be determined in accordance with its part in commission of the offence. The offence of complicity should be an circumstance aggravating responsibility.
15
Kuznetsov, A. P. "Aggravating circumstances." Institute Bulletin: Crime, Punishment, Correction 13, no. 2 (July 19, 2019): 153–61. http://dx.doi.org/10.46741/2076-4162-2019-13-2-153-161.
Abstract:
In the article on the basis of the latest amendments made to the Criminal Code of the Russian Federation circumstances aggravating the punishment are investigated, attention is drawn to some controversial legal and technical decisions in their formulation. The criminal law on the strength of influence of certain circumstances on the chosen punishment is clearly not enough, which does not contribute to enhancing the preventive role of the law, the elimination of subjectivism and discord in practice. Most scientists and practitioners support the idea of specifying, emphasizing that it will be easier to apply the law, circumstances of the case will be visibly linked to the chosen measure of criminal law impact, the importance of references in sentences to data on the case will increase, the preventive role of criminal law will increase, the prerequisites for a uniform understanding will be strengthened and application of the Criminal Code. It was not by chance that in the Soviet period of development of the science of criminal law, a tendency emerged to single out: a) main and b) other mitigating and aggravating circumstances. Consequently it is necessary to take into account the whole range of issues relating to the practical implementation of the idea of legislative specification of the strength of influence of individual circumstances: the circle of circumstances, which it may concern; the extent to which such circumstances influence the punishment (including the expediency of specifying in the law how much the punishment increases or decreases, or what is the upper or lower new limit within which the court selects the punishment taking into account the “main” circumstance). According to Part 2 of Art. 63 of the Criminal Code of the Russian Federation if the aggravating circumstances are provided for by the relevant article of the Special Part as a sign of a crime, it in itself cannot be re-taken into account when imposing a punishment. In the criminal law doctrine an exhaustive (closed) list of aggravating circumstances has not been approved by scientists, who believe that this method does not take into account changes in the sphere of public life to a certain extent.
16
Biyebayeva, A. A., А. М. Kalguzhinova, and А. T. Zhumasheva. "Revisiting the improvement of the criminal legislation of the republic of Kazakhstan on liability for the murder for hire." Bulletin of the Karaganda University “Law Series” 100, no. 4 (December 30, 2020): 58–67. http://dx.doi.org/10.31489/2020l4/58-67.
Abstract:
The article is concerned with consideration of the signs of murder for hire, the identification of types of accomplices in the commission of murders for hire, the concept of hiring in the commission of a killing, the social grounds for increasing responsibility for these circumstances qualifying the killing. The authors carried out a historical and legal analysis of the customary law of Kazakhs, Soviet and modern domestic criminal legislation regulating responsibility for murders. The bases of differentiation of criminal responsibility for aggravated killing have been determined. The concept and signs of the composition of murder for hire are analyzed, the reasons for the imperfection of the legislative formulation of this aggravating sign are revealed. The empirical basis of the study is composed of the statistical data of the Committee on Legal Statistics and Special Records of the General Prosecutor's Office of the Republic of Kazakhstan, analytical reviews, generalizations of judicial practice, published judicial practice of consideration of criminal cases on murders, as well as materials of criminal cases, acts of the «Taldau» forum, intended to ensure monitoring the quality of judicial acts, analysis of the results of the current activities of the courts, information support for litigants, practicing lawyers, use in scientific and research activities. The reliability of the obtained results is determined by the research methodology, analysis of theoretical and practical data. Studying the issues of correct legal assessment and effective prevention of the murder for hire, analysis of the ways of legal expression of this feature in the norm of criminal law constitute an important direction in the development of criminal law theory, designed to ensure the transition from the empirical basis of legal education to scientific one.
17
Lee, Young Moo. "Legal Principles and Problems of the Concept of Restricted Discretion." Institute for Legal Studies Chonnam National University 43, no. 4 (November 30, 2023): 153–79. http://dx.doi.org/10.38133/cnulawreview.2023.43.4.153.
Abstract:
Control over the acts of discretion is one of the long-standing challenges faced by the administrative law community. Control over the acts of discretion begins with the distinction between binding acts and acts of discretion. However, the relevant precedents are aggravating the difficulty of control over the acts of discretion by recognizing the concept of restricted discretion as a third area that is neither binding acts nor acts of discretion. According to the theory of precedents, acts of restricted discretion are binding acts in principle, but in exceptional cases, they refer to acts that can refuse approval or acceptance of reports when there is a need for important public interests.
However, the ‘need for important public interests’ referred to in restricted discretion corresponds to a representative amorphous concept. However, precedents understand the interpretation and application of amorphous concepts as a matter of discretion. Then, it is logical to understand restricted discretion as acts of discretion in principle. Nevertheless, the precedents commit a contradiction in viewing restricted discretion as binding acts. In addition, the concept of restricted discretion causes numerous contradictions and incongruities with existing administrative law theories, such as violation of the principle of statutory reservation, avoidance of the obligation to set disposition standards under the Administrative Procedure Act, deformation of the judgment under circumstances, and contradictions with the withdrawal system and reporting system.
In light of the above, the concept of restricted discretion should be abolished in accordance with principle of the rule of law. Restricted discretion should be considered to be established only when individual laws expressly stipulate that refusal disposition can be made due to the need for important public interests. In addition, it is reasonable to say that at the moment such a regulation is made in an individual law, the relevant acts already fall under acts of discretion in terms of the intent and purpose of the regulation.
18
Buzgalin, Aleksandr V., and Sergei Yu Glazyev. "RUSSIAN EDUCATION IN THE FIELD OF ECONOMIC THEORY: AN UPDATE IS NEEDED." Russian Economic Journal, no. 5 (September 29, 2022): 4–21. http://dx.doi.org/10.33983/0130-9757-2022-5-4-21.
Abstract:
The article argues the conclusion about the need to reform the education system in the field of economic theory. The reason for this is both the general problems known for many decades of reducing this field of teaching to courses in micro- and macroeconomics with some additions, and new circumstances — profound changes in economic life in the world in general and in Russia in particular. The authors show that the beginning of qualitative changes in technology, the aggravation of global problems and geopolitical confrontations necessitated transformations in the space of economic relations and institutions. The still dominant model of late capitalism is in crisis, which is recognized not only by critics, but also by adherents of this system (in particular, the leaders of the Davos Forum). In the Russian Federation, the changes in economic life are even more profound. In these conditions, fundamental economic education is necessary, which adequately reflects the changes taking place, preparing entrepreneurs, civil servants, households to make decisions in new conditions. Based on neoclassical postulates, micro- and macroeconomic theory, even if supplemented by developments in behavioral economics and new institutionalism, cannot fully reflect new phenomena. Meanwhile, at present, the teaching of economic theory is reduced to these courses, although there are important exceptions (courses, textbooks in China, Russia, the USA, Europe) that show the fruitfulness of a different model of teaching economic theory, which includes not only neoclassics. The article concludes with a system of concrete proposals for the restructuring of the education system in the field of economic theory in Russia.
19
Shestak, L. V., and S. V. Veremiienko. "THE CIRCUMSTANCES AGGRAVATING ADMINISTRATIVE RESPONSIBILITY." Comparative-analytical law 5 (2019): 318–21. http://dx.doi.org/10.32782/2524-0390/2019.5.81.
20
Shutova, Yuliya Aleksandrovna. "Threat of murder or serious harm to health: problems of law enforcement and ways to overcome them." Юридические исследования, no. 1 (January 2024): 73–83. http://dx.doi.org/10.25136/2409-7136.2024.1.69709.
Abstract:
Within the framework of this article, the most common crime against a person is considered - the threat of murder or causing serious harm to health. In the course of studying law enforcement practice, a number of problems arise both in the framework of the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation, and in the individualization of criminal legal impact on a person who has made a threat to kill or cause serious harm to health. In this regard, the subject of this study will be: the criminal law norm contained in Article 119 of the Criminal Code of the Russian Federation; materials of judicial and investigative practice related to the implementation of the criminal law norm provided for in Article 119 of the Criminal Code of the Russian Federation; works on the theory of criminal law, which investigated controversial issues of criminal law and criminological characteristics of the threat of murder or causing serious harm to health; the ruling of the Constitutional Court of the Russian Federation, statistical data and data from its own sociological research. In this article, general scientific and private scientific methods of cognition were used: system-structural, reduction, deductive method, method of interpretation, formal legal method The novelty of the research lies in the formulation of the author's concepts of "mental health" and "social health" of a particular person who is harmed as a result of making a threat of murder or causing serious harm to health. In order to eliminate contradictions arising in the qualification of a threat of murder or serious harm to health committed using mass media, information and telecommunication networks, including the Internet, the author has developed a classification of the threat of murder or serious harm to health according to a quantitative criterion and the concept of "grounds to fear the threat". For a uniform understanding by citizens and the correct enforcement of the purpose of making a threat to kill or cause serious harm to health, the author's concept of "intimidation" is formulated. The author gives recommendations on more effective application of aggravating and mitigating circumstances for committing a threat of murder or causing serious harm to health.
21
Я.В., Гармышев,, Ишигеев, В.С., and Бондарь, А.Я. "QUALIFICATION OF CERTAIN ELEMENTS OF CRIMES COMMITTED WITH THE USE OF WEAPONS OR ITEMS USED AS WEAPONS." VESTNIK OF THE EAST SIBERIAN INSTITUTE OF THE MINISTRY OF INTERNAL AFFAIRS OF THE RUSSIAN FEDERATION, no. 4(103) (December 26, 2022): 146–57. http://dx.doi.org/10.55001/2312-3184.2022.26.99.014.
Abstract:
Введение:в статье рассмотрена правовая природа обстоятельства, отягчающего наказание «с применением оружия или предметов, используемых в качестве оружия» на примере отдельных составов насильственных преступлений. Материалы и методы: законодательную основу исследования составляют Конституция Российской Федерации и образованное на ее основе уголовное законодательство России, иные отраслевые нормативные акты, регламентирующие сферу общественной безопасности, а также определяющие правовые основы ответственности за отдельные виды вооруженных преступлений. Методологической характеристикой исследования определен диалектический подход к научному познанию объектов социальной действительности, позволяющей всесторонне изучить объект и предмет исследования, использовались формально-логический, системно-структурный и иные методы научного познания. Результаты исследования: позволили уточнить отдельные положения, относящиеся к особенностям законодательного понятия «оружие» в уголовно-правовом аспекте на современном этапе развития общественных отношений. Определены теоретические и практические вопросы законодательной оценки понятия оружие, в контексте правовой характеристики признаков отдельных составов преступлений, связанных с применением оружия или предметов, используемых в качестве оружия. Обращается внимание на необходимость единообразного применения и четкого разграничения признаков «с применением оружия или предметов, используемых в качестве оружия» и «с применением насилия, опасного для жизни или здоровья» в теории уголовного права и в судебной практике. Анализ судебной практики свидетельствует о ее противоречивости и нестабильности, что во многом предопределяется различными взглядами на содержание данного обстоятельства, отягчающего наказание. Выводы и заключения: полученные результаты помогут в определении особенностей квалификации вооруженных преступлений, в целях определения единой судебной практики; в статье определены основные правовые характеристики элементов составов анализируемых преступлений. Высказано предложение о необходимости изменения некоторых базовых положений теории уголовного права при квалификации преступлений, связанных применением оружия или предметов, используемых в качестве оружия. Introduction: the article considers the legal nature of the circumstance aggravating the punishment «with the use of weapons or objects used as weapons» on the example of certain violent crimes Materials and Methods: the legislative basis of the study is the Constitution of the Russian Federation and the criminal legislation of Russia formed on its basis, other sectoral regulations regulating the sphere of public security, as well as defining the legal basis of responsibility for certain types of armed crimes. The methodological characteristic of the study is a dialectical approach to scientific cognition of objects of social reality, which allows a comprehensive study of the object and subject of research, formal-logical, system-structural and other methods of scientific cognition were used The Results of the study: it allowed us to clarify certain provisions relating to the peculiarities of the legislative concept of «weapons» in the criminal law aspect at the present stage of the development of public relations. The theoretical and practical issues of the legislative assessment of the concept of weapons are determined in the context of the legal characteristics of the signs of certain elements of crimes related to the use of weapons or objects used as weapons. Attention is drawn to the need for uniform application and clear differentiation of the signs «with the use of weapons or objects used as weapons» and «with the use of violence dangerous to life or health» in the theory of criminal law and in judicial practice. The analysis of judicial practice testifies to the inconsistency and instability of judicial practice, which is largely predetermined by different views on the content of this circumstance aggravating punishment Findings and Conclusions: the results obtained will help in determining the characteristics of the qualification of armed crimes, in order to determine a unified judicial practice; the main legal characteristics of the elements of the compositions of the analyzed crimes are determined. It is suggested that it is necessary to change some basic provisions of the theory of criminal law in the qualification of crimes involving the use of weapons or objects used as weapons
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Ridha Nur Arifa. "PEMIDANAAN TERHADAP RESIDIVIS TINDAK PIDANA PENCURIAN DALAM KEADAAN MEMBERATKAN DI WILAYAH HUKUM PENGADILAN NEGERI TAPAKTUAN." Jurnal Tahqiqa : Jurnal Ilmiah Pemikiran Hukum Islam 17, no. 1 (January 8, 2023): 16–27. http://dx.doi.org/10.61393/tahqiqa.v17i1.83.
Abstract:
The definition of recidivism in the Indonesian Criminal Code is regulated in Article 486 of the Criminal Code, namely regarding repeat crimes involving assets and fraud. In these articles what is meant by a recidivist is stated to be repeating a crime for his actions, there is a threat of a sentence that is aggravated or added to one third. However, in practice in the jurisdiction of the Tapaktuan District Court, judges do not impose criminal charges against recidivist criminal acts of theft in aggravating circumstances. This paper examines the Basic Considerations of Judges in Imposing Decisions on Recidivist Criminal Acts of Theft in Aggravating Circumstances and Factors Causing the Repeated Crime of Theft in Aggravating Circumstances. Based on the discussion above, it can be concluded that in the judge's decision it was not aggravating because the perpetrator regretted his actions and promised not to repeat it again, the perpetrator was also polite in court and the perpetrator was honest in giving information. The factors causing the repetition of criminal acts of theft in aggravating circumstances are educational, economic, and religious factors.
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Василенко, М. О. "REPEATING AND RECURRENCE OF INTENTIONAL MURDER UNDER AGGRESSIVE CIRCUMSTANCES." Juridical science, no. 3(105) (March 30, 2020): 352–61. http://dx.doi.org/10.32844/2222-5374-2020-105-3.43.
Abstract:
In the article, the author conducted a study of recurrence and recurrence as forms of multiplicity of premeditated murder under aggravating circumstances. The relevance of this work is that this issue has not been the subject of a separate study among modern scholars of criminal law. In the work the author found that the recurrence of premeditated murder under aggravating circumstances, it is necessary to distinguish from a criminal offense under paragraph 13 of Part 2 of Article. 115 of the Criminal Code of Ukraine (premeditated murder committed by a person who previously committed premeditated murder, except for murder under Articles 116-118 of the Criminal Code of Ukraine), which is considered a qualifying (aggravating sign) premeditated murder. After all, in the case of premeditated murder by a person who has previously committed premeditated murder, with the exception of murder provided for in Articles 116-118 of the Criminal Code of Ukraine, a single crime is necessarily meant. The author also emphasizes that the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding. In addition, the paper found that recurrence and recidivism, as forms of multiplicity of premeditated murders under aggravating circumstances, are not mutually exclusive and can be used by the court as a whole. It is concluded that in judicial practice there are many cases when courts do not clarify the issue of expungement or removal of a criminal record when imposing a penalty for repeated intentional homicides in aggravating circumstances. Therefore, the solution of this issue, in our opinion, needs legislative consolidation. After all, the recurrence of premeditated murder under aggravating circumstances is available only if the person has previously been convicted of premeditated murder, but the conviction has not yet been removed and not expunged. Or when a person has committed premeditated murder under aggravating circumstances provided by the same part of the article of the Special Part of the Criminal Code of Ukraine two or more times, and all episodes are considered in one criminal proceeding.
24
Urazboev, Sardorbek, and Muhammadrashodhon Odilov. "CIRCUMSTANCES AGGRAVATING THE LIABILITY FOR BRIBERY AND SOME ASPECTS OF THEIR QUALIFICATION." Criminology and Criminal Justice 2, no. 2-3 (May 11, 2022): 36–47. http://dx.doi.org/10.51788/tsul.ccj.2.2-3./wgbv1791.
Abstract:
The article analyzes liability for bribery in the presence of aggravating circumstances, difficulties in qualifying criminal acts, and their relationship to the circumstances specified in parts 2 and 3 of Articles 210, 211, and 212 of the Criminal Code of the Republic of Uzbekistan. Some aspects of their qualification and differentiation, signs that affect the qualification of cases, significantly increasing the social danger of this type of crime, an increase in liability in the presence of aggravating circumstances when receiving a bribe, giving a bribe, and mediation in bribery, circumstances exempting from liability, as well as problems encountered in practice are also studied. Based on the results of the analysis of the scientific views of scientists on the topic of the study, recommendations are proposed on the circumstances aggravating liability for bribery.
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Шкредова, Эвелина, and Evelina Shkredova. "Taking into Account Perpetrator’s Personality and Circumstances Mitigating or Aggravating the Punishment, as One of the Criteria of Fair Punishment." Journal of Russian Law 4, no. 6 (May 30, 2016): 0. http://dx.doi.org/10.12737/19773.
Abstract:
The article is devoted to the analysis of the general principles, which are most frequently taken into account in infliction of penalty: perpetrator’s personality and the circumstances mitigating or aggravating the punishment. In particular, the author notes that negative personality characteristics, which do not manifest themselves in the criminal conduct and which do not give evidence of the social danger should not be taken into account in sentencing. The author examines which characteristics of the individual offender must be considered in sentencing. The author attends to errors arising from the use of the circumstances in question and resulting in the violation of the principle of justice. The main reasons for these errors are inattention of judges (with regard to non-recognition of a number of circumstances as mitigating or aggravating) and the imperfection of the law (in the wording of some circumstances). In conclusion, the author arrives at the idea about the necessity of formalization of the influence of aggravating and mitigating circumstances on punishment.
26
Zatelepin, O. K. "Mitigating and aggravating circumstances in judicial practice." Criminal Procedure, no. 7 (2021): 74–83. http://dx.doi.org/10.53114/20764413_2021_7_74.
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Sukarjono, Bambang, Meirza Aulia Chairani, Angga Pramodya Pradhana, and Lusi Ardiani. "Peranan Saksi Mahkota Dalam Perkara Tindak Pidana Kasus Pembunuhan Berencana Brigadir Joshua Dikaitkan Dengan Asas Non Self Incrimination." YUSTISIA MERDEKA : Jurnal Ilmiah Hukum 9, no. 1 (June 14, 2023): 68–84. http://dx.doi.org/10.33319/yume.v9i1.219.
Abstract:
Abstract-The purpose of this study was to analyze the role of the crown witness in the premeditated murder case of Brigadier Joshua associated with the principle of non-self-incrimination and the obstacles to using a crown witness in the premeditated murder case of Brigadier Joshua associated with the principle of non-self-incrimination. This writing research method uses a normative juridical method with three approaches, namely the statutory approach (statute approach), conceptual approach (conceptual approach), and case approach (case approach). The results of the research on the role of the crown witness in the premeditated murder case of Brigadier Joshua were linked to the principle of non-self-incrimination, there were five defendants who were used as crown witnesses against the other defendants namely Ferdy Sambo, Putri Candrawathi, Bripka Ricky Rizal, Strong Ma'ruf and Bharada E However, there were two defendants who refused to be the crown witness for the other defendant, namely Ferdy Sambo who refused to be a witness for Putri Candrawathi, and vice versa Putri Candrawathi refused to be a witness for Ferdy Sambo. With this in mind, there are obstacles that come from obstacles to the defendant, obstacles to evidence, and obstacles to the trial judge. Based on this study, the use of crown witnesses in court proceedings is common. Aims to open the veil of crime from the defendant who was used as a witness. However, the use of crown witnesses must still pay attention to the human rights of the accused. In criminal law theory, this provision is referred to as the principle of non-self-incrimination, namely the defendant has the right not to provide information that incriminates himself (privilege against self-incrimination), which in practice the attitude of silence and not admitting to the accused is used as an excuse or circumstance that can be aggravating for punishing the accused.
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Gaina, Alexandru. "Aggravating circumstances of the crime of disclosure of state secret." National Law Journal, no. 2(248) (January 2023): 56–64. http://dx.doi.org/10.52388/1811-0770.2022.2(248).06.
Abstract:
Before proceeding to examine the aggravating circumstances of the offense specified in Article 344 of the Criminal Code of the Republic of Moldova, it was considered appropriate to refer, first of all, to their determination and definition according to the criminal doctrine of the Republic of Moldova. Within the provisions of Article 77 Criminal Code of the Republic of Moldova, one of the aggravating circumstances is the provocation of serious consequences by criminal offense. This article addresses aggravating circumstances, as a result of the disclosure of "top secret" and "secret" classified information, which may affect social relations regarding state security, in terms of ensuring the smooth functioning of the fields of national defense, economy, science, technology, foreign relations, etc., through the lens of the legal provisions of paragraph (2) article 344 of the Criminal Code of the Republic of Moldova. At the same time, the problem is revealed in determining the estimated sign of “serious consequences”, as an aggravating circumstance of the crime of disclosure of state secrets. In order to achieve the proposed goal, the author used the following methods: the logical method (based on inductive and deductive analysis) and the comparative method.
29
Tikhonov, V. I. "AGGRAVATING AND MITIGATING CIRCUMSTANCES CHARACTERIZING SUBJECTIVE SIGNS OF CRIMINAL BEHAVIOR." Bulletin of Udmurt University. Series Economics and Law 29, no. 5 (September 25, 2019): 681–85. http://dx.doi.org/10.35634/2412-9593-2019-29-5-681-685.
Abstract:
The Institute of mitigating and aggravating circumstances is presented not only in the norms of the General part of the criminal legislation of the Russian Federation. The application of these circumstances in the construction of individual elements of a crime allows the legislator to differentiate the orientation of the criminal law influence in relation to a specific crime element or in qualifying the fact of life reality. In law enforcement practice, proving the subjective side of a crime often causes significant problems. At the same time, motivation and achievement of a specific goal of committing a crime can have both a mitigating and an aggravating effect. The subjective side has a significant impact not only on the design of the offenses of the Special Part of the Criminal Law, but also on the process of sentencing through legal regulation of circumstances mitigating or aggravating criminal punishment. In this regard, both general and mandatory features of the subject of the crime also affect the procedure for establishing guilt and determining punishment in accordance with the norms of the Criminal Code of the Russian Federation. Of scientific interest is the study of the influence of the process of legal regulation of mitigating and aggravating circumstances in terms of the impact on this process of subjective signs of criminal behavior.
30
Vasilyev, I. A. "The principle of proportionality and strict liability of football clubs for the behavior of spectators at UEFA competitions." Law Enforcement Review 5, no. 3 (October 2, 2021): 232–48. http://dx.doi.org/10.52468/2542-1514.2021.5(3).232-248.
Abstract:
The subject. This article is devoted to the content of the principle of proportionality in disputes about the strict liability of football clubs for the behavior of spectators. The proportionality means that the sanction corresponds to the offense and it has two dimensions. Firstly, the more serious the offense is the higher the sanction should be. Secondly, proportionality protects sport from unreasonably low sanctions while the violation is serious.The purpose of the study is the content of the principle of proportionality: the use of related principles of sports jurisprudence, exceptional circumstances (mitigating and aggravating) in the practice of applying clubs` strict liability for spectators` behavior in UEFA competitions over the period 2007-2021. Liability without fault increases the value of investigating the factual circumstances of a dispute. The broad discretion of the bodies raises the question of the validity of the choice of aggravating circumstances or the refusal of mitigating circumstances. Therefore, the jurisdictional authority in each specific dispute must search for exceptional circumstances thereby fulfilling the principle of proportionality. The second important nuance of strict liability in the UEFA regulations is the difference in the interconnection between violations and sanctions. In some articles, the sanction is predetermined. It is possible to reduce such a sanction only in the presence of an exceptional circumstance and to increase it in the presence of an aggravating circumstance. Separately considered, in conjunction with the principle of proportionality, other principles: principles of predictability of sanctions, equal treatment, the precedent value of decisions on similar disputes (stare decisis).Methodology. The methodological basis of the stated research involves the generalization and analysis of the practice of two institutions of sports jurisprudence. Firstly, the jurisdictional bodies of UEFA are publicly available, as well as available to the author, but currently not available for free download on the UEFA website. Secondly, the relevant decisions of the Court of Arbitration for Sport are in the public domain. Turning to the approaches of law enforcement officers regarding the content of the principle of proportionality meant comparing positions that did not differ in inconsistency. As a result of the analysis of the practice were systematized and identified typical exceptional circumstances, unique exceptional circumstances, and specific enforcement of the principle of proportionality.The main results of research and the field of their application. The article examined the normative limits of sanctions in the UEFA Disciplinary Regulations; exceptional circumstances affecting the choice of sanction; search by the law enforcement officer of the content of exceptional circumstances; principles of predictability of sanctions, equal treatment, the precedent value of decisions on similar disputes (stare decisis) in connection with the verification of sanctions for proportionality. Compliance with the principle of proportionality, in this case, should protect the club from an unreasonably harsh and grossly disproportional sanction. Therefore, it is important to analyze the factual circumstances: which of them are mitigating and which are aggravating. In other categories of offenses, the sanction remains at the discretion of the jurisdictional authority. In such violations, the principle of proportionality takes on a special value. The more flexibility in the choice of sanction is, the higher is the risk of abuse by the jurisdictional bodes. UEFA`s enforcement practice is seeking exceptional circumstances that are not consistent enough to be predictable. Some consistency exists only concerning aggravating circumstances. There is an unreasonably strict approach to mitigating circumstances. The practice of CAS does not differ from the practice of UEFA in terms of strict liability compositions. The principle of proportionality in sports jurisprudence can be interconnected with other legal concepts. Such concepts are equal treatment, predictability, and so-called stare decisis.Conclusions. For the slightly undisputed observance of the principle of proportionality, several requirements must be fulfilled. First, analyze the factual circumstances to find exceptional circumstances among them. Secondly, always choose the minimum sanction in the absence of aggravating circumstances, since strict liability is a forced legal institution. Thirdly, indicate in the decisions what circumstances are mitigating, what aggravating circumstances have been established, and how they both affect the choice of a sanction. Fourth, use the previous decisions of the UEFA`s jurisdictional bodies and CAS of the strict liability offenses when the actual circumstances are close.
31
Yurchenko, I. A. "Murder of Two or More Persons: what did the Supreme Court Mean?" Courier of Kutafin Moscow State Law University (MSAL)) 1, no. 10 (January 9, 2023): 89–95. http://dx.doi.org/10.17803/2311-5998.2022.98.10.089-095.
Abstract:
The article is devoted to the problem of excessive qualification for multiple homicide crimes. The author shows the evolution of the attribute “murder of two or more persons”, carries out its correlation with related circumstances aggravating criminal liability, explores controversial issues of criminal legal assessment of attempted murder and murder under aggravating circumstances as independent acts.In conclusion, a new version of the provisions of the Plenum of the Supreme Court of the Russian Federation regarding the murder of two or more persons as a completed crime is proposed.
32
Siregar, Parlindungan, Risdalina Risdalina, and Indra Kumala Sari M. "Juridical Analysis of the Judge's Consideration in Terms of Mitigating the Defendant Against Premeditated Murder According to Law Number 48 of 2009 Concerning Judicial Power." Journal of Social Research 2, no. 1 (December 19, 2022): 253–60. http://dx.doi.org/10.55324/josr.v2i1.519.
Abstract:
Background: The law governing the National Criminal Procedure Law must be based on the views/philosophies of national life and the basis of the state, therefore the provisions of articles or paragraphs contained in the National Criminal Procedure Law describe the protection of human rights and the obligations of citizens.
Objectives: This study aims to find out and analyze things that can be considered aggravating circumstances and mitigating circumstances in criminal convictions. As well as knowing and analyzing the effect of consideration of burdensome circumstances and mitigating circumstances in criminal convictions
Methods: This research belongs to the normative type of research. So that it can be known that the matters that can be considered as aggravating circumstances and mitigating circumstances in the judgment of conviction must be by the characteristics.
Result: The most important consideration of aggravating and mitigating circumstances affects the proportionality of criminal convictions, both the proportionality between the criminal act imposed and the degree of guilt committed by the defendant, the proportionality related to the disparity of the verdict, and the proportionality between the conviction and the profits obtained from the criminal act.
Conclusion: The form is in the form of the nature, subject, atmosphere, or situation that prevails, relating to the criminal act. The formulation is found outside of the criminal act itself outside the elements of the criminal act and describes the seriousness of the crime or the degree of danger of the perpetrator, which affects the size of the severity of the crime to be imposed.
33
Samotiievych, V. O. "AGGRAVATING CIRCUMSTANCES INFLUENCE ON SENTENCING FOR NEGLIGENT CRIMES." Scientific notes of Taurida National V.I. Vernadsky University. Series: Juridical Sciences 3, no. 2 (2020): 58–64. http://dx.doi.org/10.32838/2707-0581/2020.2-3/10.
34
Mishanina, Angelina Andreevna. "CIRCUMSTANCES MITIGATING OR AGGRAVATING LIABILITY FOR TAX OFFENSES." Наука XXI века: актуальные направления развития, no. 1-2 (2022): 304–7. http://dx.doi.org/10.46554/sciencexxi-2022.03-1.2-pp.304.
35
Kvasnikov, Evgeniy. "Aggravating circumstances of violating labor protection requirements (art. 143 of the Criminal Code of the Russian Federation)." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2022, no. 4 (December 16, 2022): 119–24. http://dx.doi.org/10.35750/2071-8284-2022-4-119-124.
Abstract:
The article deals with the legislative differentiation of criminal responsibility for violating labor protection requirements (art. 143 of the Criminal Code) depending on the consequences occurred.
The author outlines the historical aspects of legislating the aggravating circumstances for violating labor protection requirements. The legal description of the disposition of Article 143 of the Criminal Code of the Russian Federation in the part concerning the dispositions of related crimes with such a description is compared with other crimes against the labor rights of citizens. The opinions of scholars/ scientists regarding the need to increase the level of criminal law protection of safe labor are analyzed. Justifying the increased degree of public danger in committing the relevant act with concomitant deliberate or repeated violation of the established requirements, the occurrence of consequences in the form of causing serious harm to the health of two or more persons, as well as other severe consequences, the author identifies the problem of downplaying the significance of criminal legal protection of safe labor at the present stage.
Gaps in the legislative regulation of some qualifying aggravating circumstances and the lack of consideration in the law of the degree of public danger in case of deliberate or repeated violation of labor protection requirements are pointed out. Taking into account the fact that aggravating circumstances are essential the significance of aggravating circumstances for qualifying a crime, affecting the degree of guilt and the danger of a crime or the responsibility of the perpetrator, the author underlines the importance of improving the criminal law in the relevant part.
36
Su, Tianrui, Lu Wang, and Zuoqing Xu. "The Crime of Insult in Cyberspace: A Discussion on the Identification of the Aggravating Circumstances." Communications in Humanities Research 13, no. 1 (November 20, 2023): 143–50. http://dx.doi.org/10.54254/2753-7064/13/20230271.
Abstract:
With the advancement of Internet technology, instances of insults or defamatory acts in cyberspace have become increasingly prevalent. The social harm arising from these acts surpasses that of traditional insults and defamation. However, Chinas legal system lacks a unified standard for evaluating such acts committed through the Internet particularly when determining the criteria for aggravating circumstances. By analyzing the distinctive features insulting crimes in both physical and virtual spaces, it becomes apparent that there is a lack of a clear definition for aggravating circumstances specifically pertaining to insults in cyberspace. Furthermore, there is a delay in recognizing their consequences. To address this issue, judicial adjudicators should first refer to the Interpretation of the Supreme Peoples Court and the Supreme Peoples Procuratorate on Several Issues Concerning the Application of Law to the Handling of Criminal Cases Involving the Use of Information Networks for the Purpose of Committing Slander and Other Criminal Cases (the Interpretation on Internet Slander) in order to establish a standard for determining aggravating circumstances in cases of online insults. Second, the severity of the circumstances should be determined by considering relevant factors based on the harm inflicted upon others by cyber insults. Lastly, considering the unique characteristics of insults in cyberspace, additional factors to be considered when adjudicating such cases should be proposed.
37
Dolgopolov, Kirill. "Aggravating Circumstances as a Means of Differentiating Criminal Responsibility." Legal Concept, no. 2 (June 2018): 148–52. http://dx.doi.org/10.15688/lc.jvolsu.2018.2.22.
38
Naumets, I. "Classification of mitigating and aggravating circumstances in criminal law." Юридичний вісник, no. 5 (2022): 311–18. http://dx.doi.org/10.32782/yuv.v5.2022.35.
39
Gostkova, D. Zh. "The helplessness of the victim: theoretical views and law enforcement practice." Law Enforcement Review 7, no. 2 (June 22, 2023): 125–34. http://dx.doi.org/10.52468/2542-1514.2023.7(2).125-134.
Abstract:
The subject of the study is the helplessness of the victim as a criminal legal category. The purpose of the research is to confirm the hypothesis about the negative impact of the evaluative nature of the sign "helpless state of the victim" on the unity of law practice. The historical and legal method allows us to consider doctrinal views and case law of applying norms containing the helpless state of the victim in different historic periods; using the comparative legal method, differences in the interpretation of the victim's helpless in different criminal laws are revealed; the formal legal method allows us to explore the technique of legislative recognition of the helpless state of the victim as constructive, qualifying signs and aggravating circumstances; logical methods contribute to the gener- alization of the results of the analysis of case law.The main results. It is established that the existing definitions of the helpless state of the victim, as a rule, are based on the objective inability of the person to actively resist. Based on the various reasons that cause the helpless of the victim, the following types are distinguished: physical and mental. Two categories of persons are recognized as physically helpless: those who are unable to resist due to internal factors (state of health) and external (related persons). The list of diseases that form physical helplessness is open. However, the court, as a rule, refers to disability or difficulties in movement. It is important when imputing physical helplessness to establish the fact that the victim was in such a state before the start of the committing of the criminal intent. Otherwise, it forms the objective side of the crime. The court, when determining mental helplessness, mainly focuses on the expert opinion. A controversial issue in the doctrine of criminal law remains the attribution of unconsciousness to helpless state in crimes against life and health. The Court takes the position of not attributing. In this case, it seems illogical to recognize a bound person as helpless.In order to maintain the unity of practice, a critical analysis of the approaches existing in the theory of criminal law, the grounds for strengthening criminal responsibility for a crime against a helpless person, has been carried out. These include: method, protection of socially poorly protected groups, peculiar ferocity, provoking factor, cynicism. Taking into account the specifics of crimes against sexual freedom and sexual inviolability and against life and health, it seems more logical to formulate different grounds for them: as a way of committing a crime and as protection of socially poorly protected groups, respectively.Conclusions. The hypothesis about the lack of unity in doctrine and law enforcement practice regarding the content of the "helpless state" sign of the victim was confirmed. It should be noted that the existing discussion is largely due to the ambiguous position of the Russian Supreme Court. In order to resolve the existing contradictions, it is proposed to determine the fundamental point: the basis for strengthening criminal responsibility.
40
Ostapchuk, L. G. "Voluntary compensation for damage or elimination of damage caused in the process of restorative justice as a mitigating circumstance." Uzhhorod National University Herald. Series: Law 3, no. 82 (June 10, 2024): 27–32. http://dx.doi.org/10.24144/2307-3322.2024.82.3.4.
Abstract:
The article analyzes the concept of circumstances that mitigate the responsibility of the guilty person and are taken into account by the court during the implementation of the restorative justice procedure. The content of the circumstance that mitigates the responsibility of the guilty person has been clarified, namely compensation for the damage caused and the damage caused, which in the process of releasing a person from criminal responsibility is the main prerequisite for the release provided for in Art. 46 of the Criminal Code of Ukraine. It was established that the voluntary action of the guilty party is related to the compensation of the damage caused and the damage caused is not only a circumstance that mitigates the punishment, but also a prerequisite for release from criminal liability in the order of reconciliation between the guilty party and the victim. A comparative legal analysis of national and foreign criminal legislation was carried out, which regulates the application of circumstances mitigating punishment and responsibility, which made it possible to identify the common and distinctive features of the consideration of mitigating circumstances by the court, both in the case of exemption from punishment and exemption from criminal responsibility. The author’s approach is proposed to take into account such a circumstance that mitigates the punishment, such as voluntary compensation for the damage caused or elimination of the damage caused when applying to the convicted person exemption from punishment in accordance with Art. 81 and 82 of the Criminal Code of Ukraine. At the same time, it is emphasized that the Criminal Code of Ukraine does not contain an exhaustive list of circumstances mitigating and aggravating criminal responsibility, it is considered necessary to make a clear distinction between mitigating and aggravating circumstances, which are used to individualize punishment and differentiate criminal responsibility. It has been established that by their legal nature, mitigating and aggravating circumstances must be distinguished from the same (similar) main, privileged and qualified elements of a criminal offense provided for by the Special Part of the Criminal Code of Ukraine.
41
SPIRIDONOV, Mikhail Sergeevich. "Procedural conditions for recognition of circumstances mitigating or aggravating punishment." Уголовное право, no. 1 (2022): 45–54. http://dx.doi.org/10.52390/20715870_2022_1_45.
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Wang, Ziyi, and Xinshi Ye. "China’s Infringement of Trade Secrets in the Aggravating Circumstances Proof Ideas." Law and Economy 1, no. 4 (November 2022): 40–46. http://dx.doi.org/10.56397/le.2022.11.06.
Abstract:
The perpetrator of the infringement of trade secrets to the right of the trade secrets caused by the seriousness of the circumstances is one of the elements of the crime of infringement of trade secrets, seriousness of the circumstances is also considered to be an important judgment of the crime of infringement of trade secrets and non-crime the basis. In this paper, through the crime of infringement of trade secrets for empirical research, the infringement of trade secrets in the judicial application of the widely concerned about the value of the determination of trade secrets, seriousness of the calculation method, the judicial identification of trade secrets and other issues to discuss.
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Golovko, O. M. "The principle of justice in wartime legislation: theoretical and legal analysis." TRANSFORMATION LEGISLATION OF UKRAINE IN MODERN CONDITIONS DOCTRINAL APPROACHES AND MEASUREMENTS, no. 14 (September 1, 2023): 48–53. http://dx.doi.org/10.33663/2524-017x-2023-14-48-53.
Abstract:
The article considers the principle of the fundamental principle of law ¬ – justice in the state wartime regulation. The concept of justice is one of the cornerstones and most relevant issues of jurisprudence worldwide. The system of fundamental principles of law includes the principles of justice, equality, freedom and humanism. Their valuable combination is the principle of the rule of law. Existential conditions of war determine the aggravation of the public need for justice and its reflection in the current legislation. The legislator must take them into account in the rulemaking work. This applies to both institutional and subjective justice. It is also important to take into account the understanding of the principle of justice in law as freedom, and law as a measure of freedom. In the context of justice, both positive and negative freedom acquire meaning. The war increases psycho-emotional tension in the society to the maximum level. Under such circumstances, Leon Petrażycki’s Psychological Theory of Law takes on special significance. As the human psyche adapts to social life, law changes accordingly. Attention to the issues of justice in legislation increases the importance of natural law. Just as the Second World War caused a return to natural law theories, the events of the Russian-Ukrainian war are going to increase attention to human rights and increase the social role of natural law theories. In the conditions of war, Ukrainians demonstrate a high level of legal culture. There was no rise in mob violence or illegal establishment of justice in the society. Therefore, it is in the context of the legal procedure that ensuring procedural justice and the requirements of the rule of law gain their particular importance. In the conditions of war, the value features of law acquire special importance compared to the instrumental ones. Ensuring the moral value of the law, strengthening the role of the fundamental principles – the principle of justice and the principle of the rule of law should be the way to satisfy the increased public demand for justice in legislation. Key words: fundamental principles of law, justice, institutional justice, principle of rule of law, Psychological Theory of Law, Natural Law Theories.
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GAINA, Alexandru. "AGGRAVATING CIRCUMSTANCES OF THE CRIME OF DISCLOSURE OF THE SECRET OF STATE PROVIDED FOR IN ARTICLE 344 OF THE CRIMINAL CODE OF THE REPUBLIC OF MOLDOVA." Administrarea Publica, no. 3(115) (October 2022): 140–49. http://dx.doi.org/10.52327/1813-8489.2022.3(115).15.
Abstract:
Aggravating circumstances have been addressed in the content of the article as a result of the disclosure of ,,top secret" and "secret" information, which may affect social security relations, in terms of ensuring the proper functioning of national defense areas, economics, science, technology, foreign relations, etc., in the light of the legal provisions of par. (2) art. 344 of the Criminal Code of the Republic of Moldova. In addition, the problem is described in determining the estimated sign of ,,serious consequences", as an aggravating circumstance of the crime of disclosure of state secret, provided in art. 344 Criminal Code of the Republic of Moldova.
45
Trigueros, JA, V. Plaza, J. Domínguez-Ortega, J. Serrano, C. Cisneros, A. Padilla, M. Antón Gironés, et al. "Asthma, Comorbidities, and Aggravating Circumstances: The GEMA-FORUM II Task Force." Journal of Investigational Allergology and Clinical Immunology 30, no. 2 (April 23, 2020): 140–43. http://dx.doi.org/10.18176/jiaci.0460.
46
Шеслер, Виктор Александрович. "Qualifying aggravating circumstances of theft of narcotic drugs or psychotropic substances." Vestnik Kuzbasskogo instituta, no. 1(42) (March 20, 2020): 123–33. http://dx.doi.org/10.53993/2078-3914/2020/1(42)/123-133.
Abstract:
В статье рассматриваются квалифицирующие отягчающие наказание обстоятельства хищения наркотических средств или психотропных веществ. Акцентируется внимание на том, что хищением наркотиков группой лиц может признаваться хищение, в выполнении объективной стороны которого принимали участие не менее двух исполнителей, являющихся субъектами преступления со ст. 19 УК РФ. Критикуется позиция Пленума Верховного cуда о вменении квалифицирующего отягчающего обстоятельства - совершение хищения организованной группой, в тех случаях, когда объективную сторону преступления выполнял только один из участников организованной группы. Уточняется круг лиц, использующих свое служебное положение при хищении наркотиков. Раскрываются насильственные формы хищения наркотиков. Поднимается проблема определения размера наркотических средств или психотропных веществ, находящихся в смеси. The article considers the qualifying aggravating circumstances of theft of narcotic drugs or psychotropic substances. Attention is drawn to the fact that the theft of drugs by a group of persons can be recognized as theft, in the implementation of the objective side of which, at least two performers who meet the requirements specified in article 19 of the criminal code of the Russian Federation participated. The article criticizes the position of the Plenum of the Supreme Court on imputing a qualifying aggravating circumstance - the Commission of theft by an organized group, in cases where only one of the participants of the organized group performed the objective side of the crime. Specifies the number of people who use their official position when stealing drugs. Violent forms of drug theft are revealed. The problem of determining the size of narcotic drugs or psychotropic substances in the mixture is raised.
47
Juergensen, Hans, and Rose Yalow Kamel. "Aggravating the Conscience." MELUS 15, no. 4 (1988): 111. http://dx.doi.org/10.2307/466992.
48
Golovastova, Yulia A., and Andrey N. Gordopolov. "On the question of the circumstances that reduce and increase the social harmfulness of a malicious violation of the regime of serving a sentence and the personality of the convicted person." Yugra State University Bulletin 18, no. 1 (May 10, 2022): 169–77. http://dx.doi.org/10.18822/byusu202201169-177.
Abstract:
The subject of the study is the circumstances that must be taken into account when bringing to legal responsibility convicts who have committed a malicious violation of the established procedure for serving a sentence of imprisonment. The purpose of the study is to improve the penal enforcement legislation through the normative consolidation in the Penal Code of the Russian Federation of mitigating and aggravating circumstances affecting the determination of the measure of special punishment, which will significantly expand and clarify the institution of disciplinary proceedings of persons sentenced to imprisonment. The methodological basis of the study consists of comparative legal, formal legal and statistical methods. In particular, the results of a survey conducted by 469 employees of the Federal Penitentiary Service of Russia and 273 convicts who are malicious violators of the established order of serving a sentence are presented, on the basis of which a comprehensive assessment of the circumstances affecting the measure of punishment for convicts is given. The authors substantiate the conclusion that it is necessary to take into account the considered factual conditions characterizing the commission of a malicious offense and the very personality of the convicted person. On the basis of the conducted research, the authors substantiate the expediency of normative consolidation in the current Penal Enforcement Code of the Russian Federation of circumstances mitigating and aggravating the measure of punishment by convicts, in order to increase the effectiveness of the norms of penal enforcement law regulating the issues of bringing convicts to penitentiary responsibility in places of deprivation of liberty.
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Kyrychko, Vasyl Mykolaiovych. "About system legislative viruses and social foundations of creating a new system of the Criminal Code of Ukraine." Herald of the Association of Criminal Law of Ukraine 2, no. 16 (December 20, 2021): 1–26. http://dx.doi.org/10.21564/2311-9640.2021.16.244456.
Abstract:
The article contains critical remarks about the draft of the new system of the Criminal Code of Ukraine, which is presented for discussion by its developers and is characterized by the presence of many new provisions. It is established that this system has significant shortcomings, which are associated with the incorrect reflection in the content of criminal law norms of the essential social features of crimes.
To identify such shortcomings in the system of criminal law, the concept of "system legislative viruses" is highlighted and the need to have protection against such viruses in the system is substantiated. The necessity to distinguish between the legislative virus, the negative consequences of which in the form of human rights violations are local in nature, and the system legislative virus, the negative consequences of which are large-scale, is substantiated. Legislative viruses that result in violation of the principle of proportionality between punishment and social characteristics of acts are analyzed.
Proposals for improving the system of the Criminal Code of Ukraine have been formulated. In particular, they concern the use of the category "public danger", which must perform a human rights function in the system of the Criminal Code of Ukraine. It is proposed to classify crimes using the social values they encroach on and the extent of the damage that has been or may be caused. Emphasis is placed on the need to allocate at the law enforcement level the severity (danger) of the crime: 1) with particularly mitigating circumstances, 2) with mitigating circumstances, 3) without mitigating and aggravating circumstances, 4) with aggravating circumstances and 6) with especially aggravating circumstances. The court must impose penalties based on these degrees and the legal restrictions associated with them.
The necessity of providing legal certainty on the social basis of criminal liability and restriction of rights for committing a crime, as well as on the legislative assessment of cases of simultaneous commission of several crimes and the rules of their qualification is substantiated.
It is proposed to supplement the Criminal Code of Ukraine with Article 2-1 "Rule of Law", which will ensure justice in cases of errors made by the legislator and in other cases where there is a discrepancy between formal legal requirements and social characteristics of the crime.
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Garbatovich, Denis A. "On the Degree of Impact of Qualifying Attributes and Aggravating Circumstances on Punishment Imposition." Russian judge 2 (February 4, 2021): 29–31. http://dx.doi.org/10.18572/1812-3791-2021-2-29-31.
Abstract:
The article defends the thesis that the degree of influence of the qualifying attribute on the appointment of punishment is higher in comparison with the influence of an aggravating circumstance on punishment. If, when the sentence is changed, the number of qualifying signs changes, then it is more likely that the terms or sizes of the previously imposed sentence should change.