|
Russian law: conditions, perspectives, commentaries
|
4–14
|
The article is devoted to determining the area of public domain and problematic issues of its application. In theory, legal regime of public domain provides modern society with a wide range of opportunities of intellectual property use, however, regulation of this regime and even its definition may differ from country to country, which creates legal uncertainty. The well-known principle idea/expression dichotomy which declares that all ideas should be free to use, may show the sphere of public domain in general,but it does not permit to determine the area of this regime precisely. In the narrow sense, public domainis a specific regime for situations where existing exclusive right to work expired or ceased to exist on any reason. In this case, we have a specific legal regulation rather than absence of legal regulation at all. This may provide a public control for use of intellectual property and, at the same time, avoid monopolization. However, practical application of the public domain regime is limited by a number offactors, in particular, limited access to the object, existence of protecting elements inside the work,specific technical conditions of its use, territorial limitation of exclusive right, etc. In order to provide effective use of the global humankind heritage, these factors should be reflected in legal documents at the international level. Unfortunately, currently there is clear shortage of international regulation ofthe public domain regime. National legislation (including the Russian one) as a rule does not provide necessary legal support either. As a result, society may not obtain proper access to results of creative activity of its members. |
|
15–26
|
The paper features coming alterations in the Russian legislation regulating legal relations in gardening, vegetable gardening and cottage gardening. The paper examines the approaches to determining the subject matter of legal regulation in the bill of the federal law On Gardening, Vegetable Gardening and Cottage Gardening aiming to facilitate legal relations in gardening, vegetable gardening and cottagebeing developed by the Russian Government under the instruction of the President of April 14 2014N Pr-840. The legal comparison of the provisions of the federal legislation and the applicable Federa lLaw of April 15 1998 no 66-FZ On Gardening and Cottage noncommercial Associations of Citizens shows that despite the title of the applicable law, its norms are not limited to regulating legal status of Gardening and Cottage noncommercial Associations of citizens as legal persons. The author notes that the law contains the provisions relevant to all gardeners and cottage owners irrespective of their membership in noncommercial partnerships, consumer cooperatives and noncommercial partnerships. Due to this, conclusions are made on the rationale of the choice of approaches to the subject matter of regulation as to the new federal law, i.e. whether the law answers the question if the new federal law should be a law on legal persons (non commercial corporate organizations established by citizens for gardening or cottage farming) or the law on gardening and cottage gardening as a type of activity and leisure for citizens. The author stresses the necessity to define the concepts gardening, vegetable gardening and cottage gardening due to their fundamental nature for the new federal law, presente down approaches to defining them and justified the unique nature of gardening, vegetable gardening and cottage gardening as types of land-use. |
|
27–35
|
During working activity, employee accesses commercially valuable information on the employer including the specifics of organizational structure, business, client base etc. The interest of the employerto keeping such information is evident. Cessation of labour relations may involve risks: besidedirect damages which may reach six annual salaries of an employee dismissal may result in losing goodwill, competition with the former employee, stealing clients and other employees. Abroad, rightsand legal interests of employer are seriously protected in the event of terminating work agreement. Minimizing risks of the employer is reached by various ways in particular by including in employment agreement restrictive covenants forbidding the employer to perform certain activity after terminating the work agreement. The range of restrictive covenants used abroad is wide: bans to compete with the employer, employment restrictions on a certain territory, ban on stealing clients and colleagues etc. In turn, Russian legislation provides a relatively narrow range of tools to solve similar issues. However, the number of court disputes on introducing loyalty bonuses, non-competition and other restrictions grows.The aim of the paper is to outline some ways of solving issues on the competition between employee and employer in some foreign countries, criteria considered by court when assessing the efficiency of restrictive covenants. Besides, the paper presents approaches to regulating this sphere of Russian law and trends in legal practice. |
|
36–44
|
The notion “unaccompanied and separated children” was introduced by the UN Convention on the rightsof the child. It is widely used by both international human rights community and governmental bodies ofvarious countries in regulation of treatment of the specific vulnerable group of children. The notion, which initially aimed to address specific needs of children-refugees, gradually evaluated and presently refers tochildren outside of country of their origin who are not being cared for by a responsible adult or who are with family members that are not their primary caregivers, including illegal migrants. Certain scope of rightsand guarantees is attributed to the notion to address their needs that should be determined using the bestinterests of the child principle. Russia does not use the notion developed on the international level in the national law in its human rights meaning. It was literary translated and adjusted to national perceptions (redefined).The content of the term used to define the group in Russia — “children deprived of a parental care” (deti, ostavshiyesya bez roditelskogo popecheniya) is similar but not equal. It allows to strip children of the guarantees attributed to the notion “unaccompanied and separated children” by the international treaty andto consider unaccompanied and separated children within the contexts of “violation by parents of their parental rights” and “migration”. The change of the focus brings along a perversion of the understanding of thebest interests of these children and measures the state is obliged to undertake to protect them. Moreover, it puts all the blame regarding the situation of children on their parents, leaving the state a secondary role. |
|
45–54
|
The article examines the practice of early release on parole for persons before being sentenced. The pre-trial restrictions concern detention and house arrest. The main purpose of the article is a reasonable response to the question about whether the right to set off time of detention under house arrest in six months’ imprisonment necessary for the emergence of the right to parole? To achieve the purpose,the article analyzes the current enforcement practice and opinions of scientists on this issue and the nbased on the results presents arguments to defend author’s position. The key findings of the research are: 1) offsetting time spent in detention to calculate a factual time in imprisonment to address the issueof parole is a common practice based on the positions of the highest judicial bodies of the country and supported by part of scholars in the field of criminal law; 2) when deciding in practice on recalculating time under house arrest, the decision is based on the following reasoning: since the time of the personunder house arrest shall be credited to the period of detention, and the detention period is included in the term of imprisonment, when calculating the actual period of detention, imprisonment for parole period of house arrest should be included in that period; 3) this reasoning is flawed because it is based on a dogmatic rather than systemic interpretation of the Criminal Code and Code of Criminal Procedure without understanding the role of the set six-month term in the parole system of criminal law measures; 4) by its nature, the deprivation of liberty and detention of a person from the point of criminal law arealmost identical, but the house arrest is substantially different from them; 5) the paper proposes to amend the Resolution of the Plenum of the Supreme Court of the Russian Federation of 21.04.2009№ 8 “On Judicial Practice Parole from Serving a Sentence, Replacing the Unserved Part of Punishment with a Milder one”. |
|
55–64
|
The paper features the issues of legal and applied character arising at the stage of initiating criminal cases. The issues in question may be eliminated only by amending criminal proceeding legislation.The paper considers possible ways of eliminating such collisions of legal regulation. The relevance and the practical importance of the questions considered here are caused, first of all, by the followingcircumstances. First of all, the special place which is taken by initiation of legal proceedings in thesystem of stages of criminal legal proceedings and a specific circle of the tasks solved at this stage ofcriminal procedure activity. Of note that the lawful and reasonable decision on initiation of legal proceedings depend on the completeness, time and accuracy of the inspection of the notice on a crime. Atthe same time, appropriate implementation of requirements about carrying out timely and high-quality verification of the arrived messages on the committed or preparing crimes in many respects depend not only on the qualification and conscientiousness of the officials who are carrying out the specified investigation verifications but also on a condition of standard and legal regulation of this activity. The analysis of a number of criminal procedure norms which is carried out in the present article in their correlation enables to come to the conclusion about the considerable number of contradictions in legal regulation of the activity of investigators at the stage of initiation of legal proceedings. The elimination of the contradictions by law enforcement officials, without making corresponding changes in the Code of Criminal Procedure of the Russian Federation deems impossible. Such cases concern the mostvarious aspects, such as a very controversial list of bodies of inquiry which by the current legislation have been granted the right of producing the verifications of messages on crimes and the lack of legalpossibility to exhume a corpse that excludes a possibility of its examination and, respectively, establishmentof existence of the sufficient data indicating crime signs. It is obvious that such a situation actually deprives of an opportunity to make a reasonable decision on the initiation of legal proceedings even in the presence of grounded basis. This article is an attempt not only to draw attention to some of the existing collisions of the legal regulation at the stage of initiation of legal proceedings, but also to propose possible options of their elimination. |
|
65–73
|
The article discusses the problem of careless criminal activities carried out by several people, from the position of a special kind of criminal law infliction. The article determines the legal nature of multipersonal careless crimes. The analysis of existing scientific categories of negligent infliction may help toform an idea about its features. The author proposes to change the name of reckless criminal activity of two or more persons — instead of the traditional concept of careless co-infliction you can use thename of the negligent infliction. The terms infliction, participation and consistency are relevant only to intentional crimes committed in complicity. It marked contiguous nature of the crimes carried out by negligence, the infliction, and crimes committed in complicity. The study of the concept of negligentinfliction showed that in theory the authors of this form of criminal behavior in general understood it inthe same way. Author disagrees with the position of forensic scientists who consider reckless and deliberateforms of criminal activity as a number of subjects that are identical to penal phenomenon. He hasformulated definition (doctrinal and legislative) of negligent infliction. Also author gives an exhaustivelist of characteristics of reckless criminal activity of two or more persons, — careless form of guilt; interconnected and interdependent nature of the offense committed by the causer; careless criminal result,was the result of careless or negligent acts of a few individuals. Particular lexical interpretation is givento two signs of negligent infliction, such as the interrelatedness and interdependence. Present-day academic point of view of the need to secure the careless infliction at the legislative level is confirmed. The study demonstrates that often when making careless actions convicted by a few persons, criminal liability comes only to one of these entities. In order to be able to prosecute all the participants of carelessinfliction it should be consolidated in the text of the Criminal Code. The place of imprudence in the structure of the General Part of the Criminal Law — Chapter 71 of the Criminal Code, «Special formsof inflicting» in Art. 363 «Negligent infliction». |
|
74–86
|
Large-scale and permanent changes in the current conjuncture determine the development of lawand legislation. In context of global business, the issue of competing national legal regimes remains topical. Countries develop dynamically and win greatly if they have a comfortable legal environment, which covers securities market and corporate governance. This paper analyzes the current corporateand securities market legislation. The modern Russian corporate law is at the stage of updating andgradual diverse development involving the activity of public and non-public companies, limited liability companies, exercising a shareholder information right. The article stresses the corporate law reform concerning public and non-public corporations in Russia and the legal assessment of modified rules.The objectives of the paper are to identify the challenges faced by the new corporate law and to comprehend to what extent the Russian experience is correlated with the similar processes in other countries and best international practices of corporate governance. Corporate relationships in limited liability corporations still have own specifics. It demonstrates only a technical convergence of the legalregimes for non-public joint stock corporations and limited liability corporations. Improving corporate law is closely related to the formation of the soft law regulation, in particular in corporate governance. |
Judiacial Practice
|
100–110
|
Updating the procedural legislation: adopting the Russian Federation Administrative Procedure Code,drafting a single code of civil procedure, reforms in the common jurisdiction courts and arbitrationcourts, influence of legal opinions of the European Court of Human Rights on the national legal system determined the indispensability of a single level of legal guarantees as an integral part of court proceedings. Implementing the requirements of this conception in procedural legislation is a guarantee of complying with the Russian Federation’s international obligations in the field of human rights andfundamental freedoms. As the requirements to fair trial apply to all stages of the process and all its forms (civil law, administrative, criminal, constitutional), and they meet the criteria of the right to sufficient governance, it can be stated that the level of legal guarantees is unified in the European legalfamily. However, this level is inconsistent within Russian legislation: in judicial and non-judicial process,which poses a challenge requiring urgent solution. A special concern is caused by the legal regulationof inspecting judicial acts in general jurisdiction courts where the higher judicial instance is, the loweris the level of legal guarantees in a procedure. Hence, it is urgent to develop a common approach to ensure a single level of legal guarantees in procedural legislation and to approve it as a prerequisite forreal insuring a person, citizen or organization with rights, freedoms and legal interests. The examinationof the applicable approaches may help to conclude that we are still at the beginning of the path of realizing, developing and setting a single level of legal guarantees of fair trial in procedural legislation. |
|
111–121
|
The paper features the content of the right to the access to justice in terms of international law andits correlation with the right to a fair trial and the right to judicial protection. The author notes a special feature in the development of the concept of access to justice originating in national law and gets fixed in the acts of international organizations and bodies on the protection of human rights and international treaties. The analysis of the evolution of the conception enables to specify a special aim of legal regulationas to providing a possibility to every interested party to get involved in the litigation procedure concerning the rights and interests irrespective of economic and other obstacles. The paper assesses the views of foreign authors on the concept of access to justice and shows the causes of their wide, universal approach to this concept. The author examines the right of access to justice in two variants: asan access to national means of protection and the access to international tools. A prerequisite for rightto the access to international mechanisms is specified, i.e. approval of state to join a certain protectionmechanism. The author defines the right to the access to justice and specifies the principle of equality before court to justify this right. The paper stresses that currently the access to justice is increasing both nationally and internationally. This may show a formation of commonly recognized right to the access tojustice instrumental in removing barriers between the parties interested in examining a certain dispute and the mechanisms of court administration. |
|
122–134
|
The author analyzes an action of Slovakia against a decision of the Council of the European Union onrelocation of refugees from Italy and Greece to other Member States in terms of the argumentation of Slovakia. Furthermore, the author explores argumentation of Hungary, which filed its action against thedecision of the Council of the European Union for similar reasons as Slovak Republic did. These reasonsare based on the fact that majority of Eastern European members of the Union is missing economic andsocial capabilities to integrate refugees from Africa and the Middle East. Because of this reason, some of Member States (Slovakia and Hungary) have decided to challenge decision mentioned judicially. Strong disagreements over relocation of refugees within European Union could serve as possible crucial basefor future development of political relations between EU Member States. Within the research the author presents an assessment of Slovak and Hungarian argumentation, and at some places, he compares it to argumentation of the Czech Republic, which has opposed the relocation of refugees, as well. In his study author applies official EU documents, official documents of Member States and statements of their officials, mass media publications, just to name a few. In the second part of the article the author pays attentionto possibilities for development of arguments related to the violation of the principle of proportionality, which was not sufficiently developed by Slovakia. The author concluded that the most sustainable solution to resolve migration crisis for EU would be financial support to be provided to neighboring countries (of crisis regions) most affected by migration, but not relocation of refugees within European Union. |
|
135–142
|
The number of cases where pharmaceutical trademarks are the subject of proceedings has skyrocketed inrecent years. It evidences the relevance of an analysis of the peculiarities of trademark protection in relation topharmaceutical trademarks, which is presented in the article. Close attention is paid to an analysis of registration of designations identical to INN or derivatives from INN in the Russian Federation. Relying on analysis ofthe practice of the Chamber for Patent and Trademark Disputes and courts, the authors conclude that designations identical to INN are unable to benefit from trademark protection as non-distinctive and contradictory to public interests. As to designations comprising or resembling INN to some extent, such designations havechances to be registered as trademarks if they are not considered as INN derivatives. A trademark is recognized as an INN derivative if it is similar to INN to the degree of confusion. Ultimately, the authors reach the conclusion that current Russian legislation does not require any amendments to enhance practice on consideration of cases where designations identical or confusingly similar to INN are involved, since such cases can besuccess fully inserted into general provisions governing trademarks. Another issue which is also examined inthe article is the current approach of the Chamber for Patent and Trademark Disputes and courts to the assessment of similarity in relation to pharmaceutical trademarks, especially the practice of applying the so-called«Three Letter Rule». The authors hold the view that prioritization of the «Three Letter Rule» is a negative trend,since following the «Three Letter Rule» blindly cannot replace due assessment of the designation. The authors attempt to prove this by providing examples of flaws inherent in situations including the «Three Letter Rule.” |
Law in the modern world
|
143–159
|
When resolving cross-border disputes, the courts almost inevitably face the need for a legal qualification of the disputed relations. The legislation and legal practice in many countries of the world have developed traditional approach, according to which the legal qualification is carried out on the basis of norms of national state law (lex fori). The complexity of the process of legal qualification due to several reasons: the necessity of taking into account the content of foreign law, the existence of different mechanisms oflegal qualification recognized in different jurisdictions, but also the evolution of private international law. Atthe present time there has been a development of the institute of legal qualification, coupled with a deep modification processes of the entire system of normative regulation of cross-border relations. Thus, the emergence and rapid development of transnational norms, their recognition and increasingly active applicationin the practice of international commercial arbitration actualizes the potential of the autonomous qualification as another method of legal qualification in private international law. Practice of application ofthe method of the аutonomous qualification in the resolution of cross-border disputes by foreign courts and international commercial arbitration is analyzed in the doctrine of European private international law andfinds more and more supporters. This practice is most prevalent is in cross-border commercial disputes.The article taking into account modern trends of development of international trade law in relation to crossborder contractual obligations features the peculiarities of pre-qualification; qualification under applicable law; qualification in the application of the chosen law; qualification for recognition and enforcement of foreign judicial decisions/decisions of international commercial arbitration. The article examines the modern opportunities of commonly known methods of qualification by lex fori and lex causae, and the prospects and advantages of the autonomous qualification grounded here. The method of autonomous qualification can be based on the law of treaties, acts of non-state regulation, sources of lex mercatoria. Most likely atthe present time the application of the method of the autonomous qualification in the practice of international commercial arbitration, which corresponds to the recent trends. Transnational norms, the formationof which is actively conducted now, will have in the future a significant influence on the evolution of the process of legal qualification in private international law, especially in cross-border contractual obligations. |
|
160–170
|
The issues related to the legality of international intervention in internal conflicts are often part of serious discussions both in international law and the theory of international relations. However, insufficient attention is drawn to the research of forms and types of specific measures which may be taken by the UN Security Council or with its sanction by regional organizations to respond to challenging humanitarian crises, mass and gross violations of human rights occurring within state territories. The paper attempts to classify coercive measures eligible in terms of the current common and conventional norms of modern international law. The measures are classified by the means of their implementation (military or non-military), their aim (targeting prevention, suppress and restoring) and which international body applies these measures. A focus is made on the coercive military measures, their forms and types depending the intensity and aims of coercive intervention. Besides, the paper attempts to examine their efficiency on the international expertise. This makes a conclusion that applying military coercive measures (military sanctions) should be primarily of auxiliary nature, which is determined by the impossibility to solve a crisis situation in the long run relying only on coercive instruments. Non-military coercive measures (political, diplomatic, economic) are assessed. Hence, with a significant political complexity of the situations which in practice cause mass gross violations of human rights (ethnic cleansings, mass deportations, genocide, military crimes etc.), the development of international law in the sphere should develop with a focus on regulation and implementation of a wider range of measures targeting some aspects of the crisis situations in question. |
|
171–185
|
Nowadays, international trade is one of main types of the international cooperation. In turn, sea transport considerably promoted to the development of international trade as the share of sea vessels accountsfor the major share of all international intercontinental transport. Hence, legal regulation of this ancient and actively developing institute is characterized by complexity, existence of a huge number of collisions of national and international legal norms. Legal acts in the sphere of the international carriage of goods are incapable to consider all questions and features arising during the active development of sea trade. The author considers the main problem of legal regulation of the international carriageof goods: lack of uniformity in the sources of the international private marine law. The objective of this research is studying the formation and development of the main international agreements devoted to the regulation of carriage of goods, having paid thus special attention to such main questions, asscope of conventions, responsibility of a carrier, the main transport documents, jurisdiction issues. The article on the basis of comparative method provides detailed analysis of the norms of international conventions covering the international carriage of goods by sea. The Analysis of the content of normshas shown that to date the legal regulation of international carriage of goods by sea is based on four documents: the Hague Rules of 1924, the Hague-Visby Rules of 1968, the Hamburg Rules of 1978and the Rotterdam Rules 2008. Before the adoption of the Rotterdam Rules, applicable basic legal actwas The Hague-Visby Rules, which are a modified version of the Hague Rules. Based upon the above mentioned comparative legal study, the author makes a conclusion that despite the incomplete and outdated Hague-Visby Rules, many carriers, especially the large multimodal lines already developed a mechanism of relations with its clientele by creating their own bills of lading formalities. Hence, it seems odd to expect that the newly issued Rotterdam Rules will be able to quickly gain a position in the legal field of sea transport, mainly because it is difficult for the major carriers to change a well-established legal regime. |
|
186–199
|
The subject of the research is the fair use doctrine in the US copyright law which is the basis for free use of works. Under the doctrine, third parties may freely use copyrighted works through fair use provided that it promotes “progress of science and useful arts” (Article 1 section 8 subsection 8 of the US Constitution).Special attention was given to the analysis of the content of the fair use doctrine beginning withits occurrence in the first cases related to US copyright law. The analysis was conducted on the basis ofcase law and some of the decisions of US courts in recent years. The following methods were used inthe research: legal analysis, legal simulation, legal forecast, comparative law methodology and historical analysis. The major research findings are as follows. The main features of the fair use doctrine inthe contemporary US copyright law have been identified, i.e. the doctrine is based on the four classicevaluation factors (enshrined in the US Copyright Act 1976); the judge may use any other assessmentfactors; alteration of the qualification of some classical assessment factors in comparison with earlierperiods of time; the occurrence of trends in the perception of fair use doctrine essence. The conclusionis made in respect of the unpredictability and spontaneity of the modern system of the US copyright law, based on the fair use doctrine. The conclusion is drawn in respect of insufficient conformity of thefair use doctrine with the requirements of the Berne Convention 1886 and to “three-step” test criteria.The main areas of controversy have been highlighted: the aim of legal regulation, the range of objects subject to regulation, permitted ways to use works. |
|
200–211
|
The article considers the issues related to the legal regulation of establishing enterprises with 100%Russian capital and Russian-Chinese enterprises on the territory of the People’s Republic of China.The establishment of enterprises with 100% Russian capital is studied on the example of a company with limited liability. This legal form is most frequently chosen by Russian entrepreneurs as it is identical formally to the widespread in the Russian Federation limited liability company. However, despite the similarities, a limited liability company in China and a limited liability company in Russia have a number of substantial differences which have been identified in the comparative analysis of the principal legalcharacteristics of these entities and are seen in a different order of formation and the size of the sharecapital, organization of management etc. These differences should be taken into account by Russian investors to minimize risks and avoid misperception on the legal aspects of doing business in China.The paper also discusses regulatory features of establishing joint Russian-Chinese enterprises whichare of two types — contract (cooperative) joint ventures and share joint ventures. The conducted research allowed revealing the advantages and disadvantages of each form of doing business in questionby Russian businessmen in China. For example, establishing an enterprise with 100% Russiancapital is quite a lengthy and costly (a large size of the authorized capital) process, but the advantages are a convenient control system with the possibility of delegating powers to the employees, the abilityto select the co-founders irrespective of nation, in addition to Russia, the risk of loss of property only to the extent of the share in authorized capital makes it attractive for Russian investors. In case of unwillingness or lack of financial ability to run an individual business, China’s domestic investors may join such a venture selecting one of the two types of joint ventures. Share joint ventures run is subjectto the law. Contractual joint ventures are largely governed by the agreement on contractual enterprise. |
|
212–222
|
The article features pre-trial proceedings in criminal cases in the USA. The proceedings are regulatedby case precedents, norms and state legislations. Technically, the activity represents a combination of the procedures which are usually referred to investigative, special investigative and administrative procedures in the Russia. However, the documents do not provide for any single rules for investigatory proceedings. Hence, they are not subject to uniform documentation. As to documenting investigative proceedings, law enforcement officials are guided by the orders and instructions of police departmentswhich are accurate in regulating the activity of their staff. Besides, there are different instructions prepared for the employees by law enforcement agencies, i.e. US Department of Justice and National Institute of Justice, National Center of Criminalist Technologies. Overall, the requirements of the guidelines are consistent with the requirements of police orders. Conventional ways of recording are notesand reports. They may be compiled arbitrarily or on forms. In addition to these recording means, photoand videotaping, drawing schedules and schemes are used. All the means of recording are equal and deem to be an integral part of cover fixation of investigative procedures. They are applied without overlapping as each possesses its advantages and disadvantages. In particular, recording does not always provide visibility of description, photo recording is a better option though requires additional explanations.Videoing records the crime spot in motion but is irrelevant for subsequent criminal research unlike photographs. A typical of Russian investigation minutes as a single document presenting the results of investigation is unknown to US law enforcement officials. |
|
223–234
|
The paper studies the doctrine of extenuating circumstances which originated in African Community of Nations. This doctrine developed as a response to the mandatory death penalty for murder and some other crimes in common law countries. The doctrine implies that the defendant can avoid death penalty if certain circumstances reduce his\her moral blameworthiness as distinct from the legal culpability.The author examines extenuating circumstances in practice of African courts. The paper criticizes the doctrine under consideration which led to its abolishing or modification in various countries. There are such disadvantages of the doctrine as: laying the burden of proof on the defendant; the need of confessionin order to avoid death penalty; the inability to take into account circumstances that did not exist at the time of the crime (repentance, health deterioration etc.). This leads to the conclusion that todaythe complete abolition of the mandatory death penalty is required. The author considers moral blameworthiness in the Russian criminal law science. The conclusion is that this category is fundamental to conceive the social danger of “conventional” crimes (murder, robbery, rape, etc.). However, in the case of relatively new criminal prohibitions, including in the economic sphere, the awareness of the social danger implies understanding of unlawfulness of behavior and the lack of good faith. The lack of goodfaith and moral blameworthiness are considered as preconditions of criminal culpability. Being fixed incriminal law, they facilitate to identify the degree of guilt within the framework of a particular form ofguilt if considering mitigating and aggravating circumstances in the Russian Criminal Code. Mitigating circumstances can be both related to the degree of guilt of the perpetrator and not associated with it. Inthe former case, they are a reflection of justice, in the former — of mercy. Aggravating circumstances should be associated with the degree of guilt of the perpetrator (or previous criminal record). The justice and the mercy should be adequately reflected in the rules of the criminal law. Returning to the concept of moral blameworthiness and good faith is needed to evaluate the current criminal law rules and formulation of new ones. |
Book review
|
235–241
|
Review of a monograph by G. Carlisle, D. Whitehouse, P. Duquenoy (eds.). E-Health: Legal, Ethicaland Governance Challenges. Berlin: Springer, 2013. XIII, 396 pp. |
|