Legal Positions of the Supreme Court of Russian Federation on the Crime Qualification with a “Irrelevant” Subject: a Discourse Analysis

Abstract

The object of the research in the article is the set of key decisions of the Supreme Court of Russian Federation on the issues of crime qualification committed together with a person not subject to criminal liability, as well as an inappropriate special subject. The author justifies the possibility and indicates the limits of the application of the methodology of discourse analysis in the field of criminal law enforcement. Using the archaeological method of M. Foucault, an attempt is made to reveal the influence of the social and political context on the essence, the order of argumentation and the form of legal positions determined by the highest court instance. The article puts forward and maintains the opinion that the recognition of a public danger discourse that dominates the Russian criminal law doctrine has a significant impact on the recognition of the possibility of qualifying a crime committed together with an “useless” subject. The absence of detailed argumentation in decisions of the Supreme Court considering the commission of a crime together with a person not subject to criminal responsibility as a group of persons is associated with a doctrinal position about the possibility and acceptability of such qualification based on strong rhetoric of danger and justice. Significant differentiation of the approaches of the Supreme Court in assessing the possibility of recognizing various categories of special subjects as appropriate (officials, military personnel, persons performing alternative civilian service, convicted persons) who have violated the basis or did not follow the procedure for establishing special relations with the state regarding service or serving a sentence, is explained with use of M. Foucault disciplinary society concept. The distinction established in their decisions of the rules of criminal responsibility of officials who are recognized as subjects, servicemen with respect to which they have a specific practice of not recognizing them as special subjects, and persons performing alternative civilian service who are not recognized as subjects is bound by In this sense, with the position in the system of power that they occupy (subjects of power or objects of application of disciplinary practices).