Vol 7, No 4 (2021)

8 октября 2021 года состоялась организованная Самарским университетом и Союзом криминалистов и криминологов Международная научно-практическая конференция «25-летие Уголовного кодекса Российской Федерации: актуальные проблемы кодификации и правоприменения». Этот уголовный закон был принят на рубеже веков, в условиях коренных трансформаций экономических, политических и социальных отношений Соответственно, несет на себе печать этого весьма сложного и противоречивого времени, отразившего кардинальные сдвиги и преобразования в различных сферах российского общества. В течение четверти века Уголовный кодекс Российской Федерации демонстрирует кардинальную изменчивость российского уголовного законодательства, даже снискал упреки в его бессистемности, нестабильности, рассогласованности. В то же время настоящий Кодекс последовательно обеспечивает дифференцированные подходы к противодействию преступности: усиления репрессии в отношении лиц, совершивших тяжкие и особо тяжкие преступления, и ослабления репрессии, вплоть до полного неприменения, в отношении лиц, впервые совершивших преступления небольшой и средней тяжести. Конференция была проведена в Юридическом институте Самарского университета с учетом санитарно-эпидемиологической обстановки в очно-заочном формате. Инициатором и модератором конференции выступила заведующий кафедрой уголовного права и криминологии Самарского университета, доктор юридических наук, профессор Кленова Татьяна Владимировна.

The article is devoted to the consideration of various grounds for classifying crimes related to forgery of documents, based on the content of the norms of the current criminal legislation on the relevant crimes. In view of the absence of a systematized conceptual apparatus, numerous legal terms and constructions for describing crimes related to forgery of documents are analyzed. The analysis of criminal law norms allows us to conclude that there is a common object of encroachment for the crimes under consideration, which is public relations arising in connection with the established procedure for the legal circulation of documents. In order to differentiate criminal liability for forgery on the basis of the presence of common and different signs of the elements of crimes, general and special forgeries should be distinguished, depending on the source of origin of forged documents and the ability of documents to consolidate various legally significant facts. The conclusion is made about the inadmissibility of using synonymous terms «falsification», «forgery», «forgery» to define one legal category. We consider it preferable to use the phrase «forgery of documents» as a separate, independent, and semantically most fully reflecting the essence of such crimes.

There are two trends in the development of the Special Part of the Criminal Code of Russian Federation: stability and variability (dynamism). According to the author of the article, the first trend is confirmed by the fact that during the twenty-five years of operation of the domestic codified criminal law, the legislator has not changed the number and titles of sections and chapters of its Special Part. The preservation of the basic «framework» of the Special part of the Criminal Code of Russian Federation is a positive trend. Until a unified concept of criminal law reform has been developed, changing the structure of a Special Part with the transformation of enlarged structural (sections and chapters) can completely destroy the already fragile system of criminal law. The second trend is variability (dynamism) The special part of the Criminal Code of Russian Federation is expressed in the incessant correction of the content and number of its articles. Making changes during the validity period of the Code is the norm, if it does not violate its systems and concepts. Chaotic and scientifically unjustified transformations of a Special part entail problems in the regulation of public relations, difficulties in the application of articles. Changes are necessary, but they must meet the general concept of the criminal law and be scientifically sound.

The article presents an analysis of the directions of modern criminal law policy from the standpoint of the theory of criminal law prohibitions. The author of the article considers criminalization as a process and result of the formation of a criminal law prohibition in the criminal law. Using the example of Article 2007 of the Criminal Code of Russian Federation, the application of criminalization criteria in the legislative process is investigated. Special attention is paid to the issue of the concept of criminal law, its connection with the process of legalization of criminal law prohibitions. The position is substantiated that the increase in the number of criminal law prohibitions does not have positive socially significant consequences. The author of the article comes to the conclusion that the use of the criminal law resource should correspond to the modern picture of the social world, as well as correspond to basic human values, the main of which is justice. Otherwise, the tasks assigned to the criminal law will not be solved.

The article is devoted to the 25th anniversary of the Criminal Code of the Russian Federation, the peculiarities of its creation and the results of codification. The article examines the features of the codification process and its cycles using the historical method. The author of the article substantiates the conclusion about the codification of current Russian criminal legislation and models the directions of criminal law regulation. Special attention is paid to the problem of conceptual certainty of codified and current criminal law regulation. It is concluded that it is necessary to formalize judicial discretion within reasonable limits. The author of the article concludes that the 25th anniversary of the Criminal Code of the Russian Federation is a serious reason for discussing not the replacement of the criminal law with judicial positions and other sources of criminal law norms, but the stabilization of criminal law regulation and the strengthening of the rule of law.

For 25 years of operation of the Criminal Code of Russian Federation, the doctrine has not formed an understanding shared by most researchers of such a basic category of the institution of circumstances excluding the criminality of an act as the basis for recognizing harm as permissible in the relevant circumstances, and it has not been determined which of the properties of the crime specified in Article 14 of this Code is absent in the acts that caused harm in circumstances excluding the criminality of the act. In this regard, the purpose of the study is to determine the social grounds for causing harm in which society considers permissible, as well as the legal basis – the absence of a crime property in the act that caused harm in a legally established situation. The article proves that the general social basis for the permissibility of causing harm in the reflection of a socially dangerous encroachment, the elimination of other threats is the necessity, the extreme use of a harmful method, the impossibility of resolving social conflicts and contradictions without causing harm. It is emphasized that causing harm when repelling an encroachment in situations of necessary defense, eliminating danger in extreme necessity, etc. it cannot be evaluated as socially useful. It is proved that for each of the circumstances specified in the norms of Chapter 8 of the Criminal Code of Russian Federation, there is a social basis (reason), by virtue of which society allows harm to be inflicted. For example, the social basis of the permissibility of causing harm in defense (defense) is rooted in the natural right of a person to defend himself and the objective impossibility of the state to fully ensure the safety of any person; the social permissibility of causing harm when detaining a person who has committed a crime is determined by the need to implement the principle of the inevitability of responsibility for the crime committed. From the legal point of view, the author of the article concludes that the norms on the circumstances excluding the criminality of the act contain exceptions to the general prohibitions established in the norms of the Special Part of the criminal law. The legislator «did not endow» with the property of illegality a consciously committed act that causes harm under any of the circumstances excluding the criminality of the act, even when it is socially dangerous.

The article examines public and private principles in criminal law. The authors of the article separate public and private principles without corresponding opposition of branches of law and conclude that the mutual influence of public and private principles is inherent in all branches of Russian law without exception. For criminal law, the public nature of which is not disputed, this conclusion is confirmed by reference to Article 76 of the Criminal Code of Russian Federation, in which, according to the authors of the study, the influence of the Civil Procedure Code of the Russian Federation is directly manifested (chapter 141 of the Civil Procedure Code of the Russian Federation) and the Arbitration Procedural Code of the Russian Federation (chapter 15 of the APC of the Russian Federation) regulating the settlement of disputes by peaceful means. The article also reveals the connection between criminal law and arbitration procedural law. The article also reveals the connection between private and public principles of criminal law and arbitration procedural law in connection with the application by the arbitration courts of paragraph 1, рart 1, article 161 of the APC of the Russian Federation, which regulates the obligation of the arbitration court, upon receipt of an application for falsification of evidence, to explain to the subject the criminal consequences of such an application, and article 1881 «Private definitions» of the APC of the Russian Federation, which actually imposes on arbitration courts the obligation to qualify a crime.

The article offers a scientific justification of the norms of Article 80/1 of the Criminal Code of the Russian Federation, examines some problems that arise when a convicted person is released from punishment due to a change in the situation, and identifies ways to solve them. The opinion is defended that the change in the public danger of a person cannot be assessed without the relationship with the crime committed. It is also argued that the category of the crime committed, as well as the establishment of the fact: whether the crime was committed for the first time or not, are in no way connected with a change in the situation and cannot by themselves affect the disappearance of the public danger of the crime or the person who committed it. The author of the article substantiates the conclusion that the change in the situation should be associated only with the loss of the public danger of the crime committed earlier.

The article problematizes the status of domestic criminology of convicts in research and practical contexts, reflects the peculiarities of development of this discipline in its founding countries. It is said that Russia has a diverse experience of participation of former convicts in the study and reform of the institution of prison. It is suggested that the generalization of the practices of participation of convicts and former convicts in the study and reform of correctional institutions in Russia will contribute to the institutionalization of criminology of convicts in the Russian discourse. When determining research methods for the purposes of criminology of convicts, emphasis is placed on qualitative research. The possibilities of an autoethnographic approach in the study of correctional institutions are considered, with the inclusion of convicts and former convicts themselves as actors in this process. The possibility and necessity of discussing the regulatory grounds for the participation of convicts and former convicts in educational and research activities is problematized.

The article provides a dogmatic analysis of the category «judicial precedent» as one of the types of formal source of law. The meaning and main types of legal precedent are determined. The construction of the judicial precedent is considered through the prism of its development in English law (common law and law of equity), the substantive features of the «stare decisis» principle are analyzed as a fundamental basis for the mandatory application of the judicial precedent in practice. An universal definition of a judicial precedent based on the analysis of its essential features is proposed. The author examines the categories «ratio decidendi» and «obiter dictum» within the framework of the judicial precedent and analyzes the features of their identification. The article provides a logical relationship between a court decision, judicial practice and judicial precedent, considers the main types of judicial precedent (binding, persuasive, rejected), their substantive features and regulatory significance. A comparison between precedent «de jure2 and precedent «de facto» is made, the value of the interpretation precedent in relation to the construction of the «legal position of the highest court» is established. The conclusion about the formation of the Russian doctrine of judicial precedent is made both at the level of the general theory of law and in the branches of Russian law.

The article is devoted to the definition of the nature of legal relations that develop during the conclusion of public contracts. The author examines these legal relationships and reveals absolute and relative legal relationships that arise when concluding public contracts. The meaning and legal consequences of the obligation to conclude them are determined. The judgments expressed in science, according to which, prior to the commencement of the procedure for concluding a public contract between a person engaged in entrepreneurial or other income-generating activities, and the other party, there is an «absolute obligation» are critically evaluated. The inadmissibility of the idea that the abovementioned person does not have an obligation to conclude a public contract at all, and the action of article 426 of the Civil Code should be qualified as a reflexive action of law, is recognized as unacceptable. It is proved that the obligation relationship certainly arises within the framework of the construction of a public contract, but not from the moment the obligation arises to conclude it, but from the moment of the onset of a special legal fact – the appeal of a specific consumer.

In the article, the authors consider the latest by-law regulation of the institute of the network form of the implementation of educational programs in the higher education system of Russia. Despite the emergence of normative certainty on several issues, there are still quite ambiguous provisions. Thanks to this study, key ones have been identified and commented on. The popularity of the network form among universities is still relatively low. The authors have systematized several topical reasons for the conclusion of agreements on the network form by universities. Qualitative changes in the popularity of the online form can occur both thanks to new state programs («Priority-2030») and the renewal of development programs for leading Russian universities (for example, St. Petersburg State University). A separate issue is proposed at the sub-legal level as an approximate form of an agreement on the network form. The authors see the legal nature of such an agreement as undoubtedly administrative. But the conclusion of the agreement is accompanied by many nuances discussed in the article, and which must be kept in mind by universities. After the study, the authors highlighted priority issues for continuing to give the network form the expected normative certainty.

This article analyses the activities of the internal affairs bodies in the field of solving and investigating crimes, related to the violation of traffic rules and the operation of vehicles, focuses on the specifics of preparation for the investigative action – inspection of the scene of a traffic accident, as one of the main investigative actions, as well as the importance of the actions of the investigator, related to the detection and fixation of the material and road situation at the scene of a traffic accident. The article emphasizes: a methodology for documenting crimes committed in the field of traffic safety and operation of transport, characterized by the fact that qualified persons are important from the moment such facts are reported, timely and competent actions of the investigator related to the detection and recording of the physical and road situation at the scene of a traffic accident, and the seizure of physical objects and traces due to the fact that they are subject to change within a short period of time. The inspection of the scene of a traffic accident is presented in the form of an investigative action, the essence of which is the direct perception by the person producing it of the material situation displayed on the road and the elements adjacent to it (objects) as a result of a traffic accident, in order to detect, fix and remove material traces and circumstances that make it possible to subsequently recreate the mechanism of the event, as well as other circumstances of the incident that need to be established in order to solve the tasks of criminal procedure.

The article deals with qualified types of incitement to suicide, provided for in paragraph «a» of Part 2 of Article 110 of the Criminal Code of the Russian Federation. The author of the article acknowledges that the interpretation of relevant signs of the composition of incitement to suicide in the scientific literature and practice is not indisputable, and offers scientifically sound recommendations for their definition in order to apply them uniformly in the qualification of crimes. With regard to the qualified composition of incitement to suicide committed against a person who is obviously helpless for the perpetrator, it is recommended to interpret the sign «helpless state» in a narrower semantic meaning than is provided for the purposes of the compositions of murder (Part 2 of Article 105) and rape (Part 1 of Article 131) of the Criminal Code of the Russian Federation. The article substantiates the conclusion that the helpless state of the victim in the sense of Article 110 of the Criminal Code of the Russian Federation cannot be attributed, for example, unconsciousness; young age; a state of mental disorder of a person that deprives him of the ability to correctly perceive what is happening.