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No 12 (2018)
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EXPERT OPINION

18-22 298
Abstract
The article deals with the problem of the role of conjuncture in the system of grounds for criminalization of acts, its reflection in the changes and additions of the current Russian criminal law. From these positions the corpus delicti provided for in article 286.1 of the criminal code is analyzed.

ВЕКТОР ЮРИДИЧЕСКОЙ НАУКИ DE LEGE FERENDA

23-33 303
Abstract
The article deals with the history of the emergence and development of criminal legislation providing for independent responsibility for organizational criminal activity. It is concluded that the first time it appeared in the Statute of criminal and correctional punishments of 1845. In addition, according to the pre-revolutionary theory of criminal law, those responsible for creating and participating in a conspiracy or gang were subject to independent responsibility only when the crime they had conceived was not committed, otherwise the responsibility for the committed act absorbed responsibility for the conspiracy itself. Research of the Soviet criminal legislation (the criminal code of the RSFSR of 1922, 1926, 1960) allows to assert that in General it has kept continuity with the pre-revolutionary legislation regarding construction of criminal liability for organizational activity. However, with the adoption of the resolution of Plenum of the Supreme Court of the USSR from September 22, 1989 № 10 “On the implementation by the courts guiding explanations of the Plenum of the USSR Supreme Court with criminal cases of premeditated murder” and of the resolution of Plenum of the Supreme Court of the Russian Federation from December 21, 1993 № 9 “on judicial practice in cases of banditry”, judicial practice on the assessment of organizational activities has changed dramatically. Inherent in the explanations of the Plenum of the Supreme Court of the USSR (Russian Federation) the rules of qualification of actions of the organizer and the participant of the organized group (criminal Association) were popular in contemporary law-enforcers and were taken into account by the legislator when creating the criminal code.
34-42 826
Abstract
Normative consolidation of the rules of the criminal law in time has not yet touched upon issues related to the temporal aspects of the blanket legislation and the recommendations of the Plenum of the Supreme court of the Russian Federation. Based on the analysis of historical experience, it is presumed that the unsolved nature of these problems leads to abuse by the authorities of their legitimate right to violence. The way out of this situation can be a balance of competencies of the branches of government and the legislative establishment of the rules of criminal law through the development of an appropriate principle.
43-52 393
Abstract
In recent years a tendency has emerged that manifests itself in securing in a number of norms of the General Part of the Criminal Code a stricter attitude to certain types of crimes on the basis of their objects, and not in accordance with the category of crime. At the same time, the major importance of categories has become lost due to the fact that the legal consequences of referring to a particular category are unified and do not depend on the place of a certain type of crime in the Criminal Code. Critically comprehended are the novels included in Art. 15, 64, 73, 78, 79, 83 of the Criminal Code, undermining the system of categories of crimes and containing for certain types of crimes more severe consequences than for especially grave crimes. It is concluded that the legislative changes of recent years, including the increase in the number of crimes for which a life imprisonment is provided in an alternative with imprisonment for a certain period, indicate the actual creation of a new category of crimes not identified in Art. 15 of the Criminal Code, which can be conditionally called a crime of exceptional gravity.
53-61 765
Abstract
The article investigates the problem of criminalization of stalking in the Russian criminal legislation. Stalking is considered in two aspects: as systematic prosecution of the victim by one person or group of persons and as illegal penetration on protected objects. The conclusion is made about the necessity of criminal law prohibition of illegal interference in any form in a person's private life without his consent. It is proposed to optimize the provision of the criminal law on illegal receipt of information constituting a state secret by specifying the material media of such information as the subject of the crime.
62-72 510
Abstract
Article is devoted to a research of an object of the crime provided by article 238.1 Criminal Code of the Russian Federation. In work opinions of scientists of rather main direct object of crime are analyzed, the conclusion about the most acceptable approach to his definition is drawn. Further consistently kinds of a subject of the criminal address of the forged, substandard and unregistered medical production are considered. Is established that the forged medicines, the substandard medicines and the forged dietary supplements containing the pharmaceutical substances which aren’t stated at the state registration are mutually exclusive concepts. Substandard medicines are the original (not forged) medicines or pharmaceutical substances which have stopped corresponding to quality indicators in the course of the address. The forged dietary supplements containing the pharmaceutical substances which aren’t stated at the state registration unlike the forged medicines surely contain pharmaceutical substances in this connection pose a threat to health of the population.
73-80 548
Abstract
The rapid development of scientific and technological progress contributed to the formation of a legal vacuum, the reason for which is the formation of a new paradigm of digital society, which does not fully fit into the existing legal system. A flexible model of criminal law regulation of human interaction with the components of the digital space the current system of criminal policy, consisting in the adoption of point laws on certain issues - is unlikely to create. It is necessary to form a new conceptual and complex scientifically grounded approach of criminal-legal regulation of digital society, created on the basis of the principles of interdisciplinarity, which may require the reform and revision of some conceptual foundations of criminal law. The article substantiates the need for scientific research to develop a model of transformation of criminal law, created taking into account the criminal law risks of modern digital technologies. On the basis of an interdisciplinary approach, the research team will study the experience of the use of modern digital technologies, then on the basis of the developed algorithm for identifying criminal risks, will assess the risk factors that arise in the application of each digital technology in various spheres of society, then a description of the identified risks, taking into account the current criminal law, and if it is found that the level of repression applied to the subjects using digital technology is too large - a new flexible model of criminal law regulation will be proposed, as well as a mechanism to minimize this criminal law risk.
81-87 585
Abstract
On the basis of the analysis of the theory of responsibility and punishment in criminal law, criminal law in this part, the theoretical and applied issues of exemption from these criminal law consequences are considered. Taking into account the legal nature and social legal significance, the provision on the need for a clear distinction between the concepts of exemption from criminal liability, exemption from punishment and exemption from punishment is updated.
88-94 611
Abstract
The analysis of the current Federal Anti-corruption Legislation of Russia. Shortcomings of norms of the legislation are revealed and suggestions for their improvement are formulated. On the example of a specific criminal case, the relevance of explanations by the Plenum of the Supreme Court of the Russian Federation of certain signs of bribery is shown.
95-104 368
Abstract
This article is devoted to the study of the principles of the criminal law in space and their relationship with the principle of justice. The principles of the criminal law in space are constructed in such a way that the jurisdiction of a few states can be extended to the person who committed the crime. Justice, as a basic legal principle, as applied to criminal law, is that a person guilty of committing a crime is punished adequately with the public danger of the committed act and the degree of guilt. The idea of guilt and the adequacy of retribution for the crime committed in different countries can vary significantly, and accordingly, a legal assessment of the committed act may differ. Thus, the requirement of the Criminal Code of the Russian Federation on unconditional recognition of a judicial decision of a foreign state in accordance with the principle of citizenship and the real principle, as a legal fact, stopping the possibility of criminal prosecution under the Criminal Code of the Russian Federation may prove an obstacle to a fair (in accordance with the Criminal Code) sentence. The universal principle imposes on Russia the duty to fight offenses that are stipulated in the international treaty of the Russian Federation or other international document, but it is not clear whether it is permissible to extend the application of this principle to persons who committed such acts in a country that does not recognize them as crimes if they are citizens of this countries. International legal acts that determine the mechanisms for combating crimes can be very far from perfect. At the same time, Russia has enshrined in its Constitution the obligations to recognize the priority of international legal acts in comparison with domestic legislation. The need to recognize the subordination of domestic legislation to international law is currently lacking, since such recognition is a direct restriction of Russia’s sovereignty, which does not need such restrictions.
105-112 557
Abstract
The legislative consolidation of the institution of administrative prejudice is inconsistent. This creates difficulties in defining its boundaries in the understanding and application of the relevant rules. Itself administrative collateral estoppel deserves a critical eye. It violates the principle of non bis in idem; shifts the basis of criminal responsibility towards the personality of the offender; blurs the boundaries between crime and administrative offence. Its existence is actually allocated among administrative offences special group of torts, which occupies its public danger an intermediate position between administrative great-wonarishinani and crimes. This result unnecessarily complicates the system of public offences.
113-120 623
Abstract
According to art. 205.1 the CCRF and the note to the calendar. 205.2 Criminal Code offences such as assault on the life of a State or public figure (article 277 of the Criminal Code), the violent seizure of power (art. 278 of the Criminal Code) and armed rebellion (art. 279 of the Criminal Code) relate to terrorist activity. However, legislator data crimes placed in section X of the Criminal Code, “offences against the public authorities and, therefore, the question arises about the terms of public relations, to which they impinge, and about the properties of the public danger of the acts in question. This article is devoted to the problems of the definition of the object of the crimes set out in art. 277, 278 and 279 of the Criminal code of the Russian Federation. The author concludes that the characteristics of the principal object directly, you will need to come from the public authorities. Accordingly, in the Commission of violations of the right to life of a State or public figure object of criminal-legal protection are a threat to the social relationships underpinning the security of actors; When the violent seizure of power and the armed rebellion caused such harm to the central structural element of State power, as vlasteotnoshenijam.
121-129 803
Abstract
Person’s consent on causing harm to life and health is analyzed in the article. It is proved that the area of the person’s consent on causing harm to absolute values such as life and health is expanded as a result of the change of the place of personality in modern society, when a person achieves greater freedom to dispose of his body, as well as development of science and introduction of new technologies. It is an area where socially useful result is achieved particularly in case of allotransplantation, conducting of researches and medical treatments connected with genes of a human being, development of radical means of treatment, however it is also an area where socially neutral result is present in the form of treatment of disorders of a personality such as body integrity identity disorder and change of gender. Person’s consent on causing of harm can have three meanings in criminal law: 1. as a constructive characteristic of a crime; 2. as circumstances, mitigating criminal responsibility; 3. as circumstances, eliminating criminality of an action
130-136 544
Abstract
The article, at a critical angle, examines the attributes of crime, provided by the Art. 173.1 of The Criminal Code of Russia. Definition of figurehead, the moment of the termination of the crime are given, possible stages of its fulfillment are defined. The article shows the relationship between the analyzed crime and the crime, which is provided by art. 173.2 of the Criminal Code of Russia, which in certain cases requires qualification for a combination of crimes. Proposals are being made to improve the wording of the criminal law, concerning the clarification of the attributes of the objective side of the crime, the definition of figurehead and the introduction of qualified corpus delicti. Particularly highlighted are the situations in which a person, who created an organization with the figurehead, carries out entrepreneurial activities, but then does not fulfill contractual obligations to third parties. It is in detail determined what it means “use of one's official position” by a person. An opinion is voiced about the possibility of excluding from the aggravating circumstances the commission of a crime by a group of persons on preliminary conspiracy.

СРАВНИТЕЛЬНО-ПРАВОВОЕ ИССЛЕДОВАНИЕ

137-147 417
Abstract
Partial decriminalization of battery in Russia does not allow achieving the desired goals. The fact that a violence cannot be regarded as an administrative offense is not taken into account. The reasonable punishment of the child by the parent should not be seen as punishable battery. The reform has increased legal uncertainty. It cast doubt on the right to self-defense against common assaults. The comparison of Russian and English rules of law allows us to conclude the Russian legislator is much more tolerant to violence, and there are opposite tendencies in the development of Russian and English law in this aspect

КОММЕНТАРИЙ ЗАКОНОДАТЕЛЬСТВА

148-154 276
Abstract
The article analyzes the state of criminal legal protection of the circulation of payment means within the framework of art. 187 of the Criminal Code of the Russian Federation, reveals key provisions of strategic planning documents, which are basic for the development of criminal legislation in this area. In the article the reasons of the changes brought in art. 187 of the Criminal Code of the Russian Federation, their comparative legal analysis was carried out. It emphasizes the relevance of innovations related to the expansion of the list of crime subjects, as well as the specification of the provisions of the criminal law norm, including the delineation of responsibility for acts expressed in the use and sale of crime subjects. Special attention is paid to the issues of qualification of unlawful acts committed using the means of electronic communication.
155-162 1520
Abstract
The article studies the issues of criminal responsibility for the rehabilitation of Nazism (Article 354.1 of the Criminal Code of the Russian Federation). The international tendencies directed on criminally-legal protection of historical facts are investigated. Countries listed in which criminal responsibility for similar acts are already established are listed. The introduction of criminal responsibility for the rehabilitation of Nazism in the Russian Federation was preceded by a very long process. Legislation is analyzed, as well as bills in which the terms related to the rehabilitation of Nazism are officially interpreted. A legal analysis of the offense under article 354.1 is carried out. The Criminal Code. The concepts of “rehabilitation of Nazism”, “denial”, “approval of crimes”, “dissemination of knowingly false information”, “artificial creation of evidence of accusation”, “information about the days of military glory and memorable dates”, “desecration of symbols of Russia’s military glory”, “public character “. Various points of view in science are being studied regarding the criminal responsibility for the rehabilitation of Nazism. The shortcomings of the legislative design of the current version of art. 354.1 of the Criminal Code. Despite the long process of adopting legislation in this area, the activity of the legislator in this direction deserves a positive evaluation.
163-171 588
Abstract
The author of this article analyzes amendments made to the Criminal Code of the Russian Federation by Federal Law No. 120-FZ of June 7, 2017 and No. 248-FZ of July 29 2017, concerning the establishment of additional criminal and legal countermeasures against actions aimed to encourage deviant behavior. The author pays attention on the advantages of legislative rules establishing responsibility for bringing to suicide or performing other actions which could lead to suicide or other actions threatening the life of the victim. The article also states the provisions that need to be seriously revised at both the legislative and law enforcement levels (the age limits of the victim in the analyzed rules, the rules providing for the release of the responsibility of the subjects of the crime provided for in Article 110. 2 of the Criminal Code; the age of the subject of the crime provided for Article 151.2 of the Criminal Code, etc.).

SCIENTIFIC RESEARCH

172-181 664
Abstract
Within the development of digital economy it is already impossible to deny the existence of “virtual property" with all its traditional hallmarks, except its material entity. Treated were the notions and classifications of money surrogates and cryptocurrencies, the status of cryptocurrencies as a subject and means of committing a crime. The aim of this work is to search a universal algorithm for qualifying the theft ((fraud, stealing) of virtual currency. It is suggested to give up the hallmark of material entity of the property as the object of theft. There was carried out an analysis of bill drafts prepared by the Ministry of finance and the Central bank of the Russian federation and the author's view of the perspectives of qualifying offences involving the use of the cryptocurrency.

BOOKSHELF OF THE DEPARTMENT

OFFICE EVENTS DIGEST

LAW IN HISTORICAL REFRACTION. Legal Monuments

ПОРТРЕТ НА ФОНЕ ИСТОРИИ

204-215 216
Abstract
The essay describes Saint Ambrose of Milan, Who received a legal education and worked as a lawyer and later became Bishop of Medio-lan (present-day Milan). His influence on the Soviet power, in particular on the policy of Emperor Theodosius is shown, the General characteristic of creative heritage (treatises, homilies, hymns) is given, the short analysis of moral Maxim theologian is made.

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ISSN 2311-5998 (Print)
ISSN 2782-6163 (Online)