Sergei Markuntsov1
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation

Genesis of Approaches to Legal and Doctrinal Definition of Criminal Offense

2018. No. 1. P. 112–132 [issue contents]
The concept of a criminal offense according to experts has been known to the nationallegislator and law enforcement for about three centuries. In the pre-revolutionary period,the notion of misdemeanor along with the concept of crime was enshrined in the Code ofCriminal Laws of 1832, in all editions of the Code of Criminal and Correctional Penaltiesof 1845, in the Criminal Code of 1903. In these legal acts, offense, like crimes, wereconsidered as a variety of criminal illegal acts. In the Сriminal Сodes of the RSFSR in1922, 1926, 1960, the concept of a criminal offense was not fixed. In the draft Code of Criminal Offenses (1973), which was not adopted, the criminal offense was proposedto be considered as а non-criminal offence. In 1977, the Fundamentals of CriminalLegislation of the USSR and the Union Republics of 1958 and the Criminal Code of theRSFSR in 1960 introduced provisions on crimes that do not pose a great public danger. Inthe early 1990s, the introduction of criminal offenses as an independent group of criminalacts was proposed in some projects of the Criminal Code. The problem of a criminaloffense is not new for the domestic science of criminal law. In the criminal legal doctrineof the pre-revolutionary period, the allocation of criminal offenses was justified by dividing“according to the kind of iniquity”. In the Soviet period, the problem of a criminal offensebegan to be actively discussed from the 1960s. Most of academics considered thecriminal offense as a kind of crime, which has a certain degree of public danger. It wasquite popular that the criminal offense was viewed as a kind of socially dangerous actprohibited by Criminal Code along with a crime. Some researchers considered it as an actthat was not at criminal-illegal and criminally punishable. In the modern Russian doctrineof criminal law, essentially the same three basic positions have been preserved in thematter of determining the nature of a criminal offense.In the case of implementing thelegislative initiative, issued in the form of Resolution of the Plenum of the Supreme Courtof the Russian Federation of October 31, 2017 No. 42, the Criminal Code of the RussianFederation will introduce the concept of a criminal offense, which will be understood onlyas a sub-category of crimes of small gravity.
Citation: Markuntsov S. (2018) Genezis podkhodov k legal'nomu i doktrinal'nomu opredeleniyu ugolovnogo prostupka [Genesis of Approaches to Legal and Doctrinal Definition of Criminal Offense]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 112-132 (in Russian)
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