"ОБСТОЯТЕЛЬСТВА, СМЯГЧАЮЩИЕ НАКАЗАНИЕ И ИСКЛЮЧАЮЩИЕ ПРЕСТУПНОСТЬ ДЕЯНИЯ ПО УГОЛОВНОМУ ЗАКОНОДАТЕЛЬСТВУ ФРАНЦУЗСКОЙ РЕСПУБЛИКИ (СРАВНИТЕЛЬНЫЙ АНАЛИЗ)"

The existing paper provides a comparative analysis of the criminal legislation of Canada and Uzbekistan in terms of consideration of the mitigation of punishment and criminal defenses. In detail, the present research provides an overall overview of the mitigation of sentence institute in accordance with the existing editions of the Criminal Code of Canada and the Criminal Code of the Republic of Uzbekistan, including the issues of determining the punishment for the criminal offences committed in a state of mental disorder, as well as insanity and diminished responsibility for incomplete offences and criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm, etc. Pursuant to the results of the conducted analysis, similar and different sides of current criminal laws have been clarified. Decisions on the performed analysis and a final conclusion on the implementation of Canada's some criminal law norms to the criminal law of the Republic of Uzbekistan have been provided

This article provides a comparative analysis of the criminal legislation of the Netherlands in terms of consideration of the mitigating factors and criminal defenses. This paper provides an overall exploration of mitigation of sentence institute in accordance with the present edition of the Penal Code of the Netherlands, adopted on March 3, 1881, and entered into force from September 1, 1886, and the existing edition of the Criminal Code of the Republic of Uzbekistan, adopted on September 22 and entered into force from April 1, 1995, including the issues on determining the punishment for the criminal offenses committed in mental disorder as well as insanity and diminished responsibility, for not completed offenses and the criminal complicity, exemption from liability and punishment, including criminal defenses and voluntary rejection from crime as per of Netherlands’ criminal legislation. Pursuant to the results of the conducted analysis, similar and different sides of current criminal laws have been clarified, decisions on the concluded analysis and final conclusion on the implementation of some criminal law norms to the criminal law of the Republic of Uzbekistan have been provided.

The aim of the presented work is a legal analysis of the structure of the Special Part of the Criminal Code of the Russian Federation from 1996 to 2020 in order to identify trends in contemporary criminal law construction and prospects for the structuring of Russian criminal legislation. We have studied individual structural components available in the Special Part of the Criminal Code of the Russian Federation (such as chapters, sections, articles, as well as special attention to the dispositions, sanctions and notes to the articles of the Special Part of the Criminal Code of the Russian Federation) in the context of the modern development of socio-economic and political relations. Particular attention is paid to the methods of legislative technique in the construction of the Special Part of the Criminal Code of the Russian Federation. The tendencies typical of the modern criminal legislation were revealed. Attention was drawn to the presence of certain differences in the construction of the Soviet criminal codes and the current criminal law. Opinions existing in doctrine on the problem of construction of the modern criminal law of Russia are given. It is shown that the systematic ongoing permanent changes in the content of the articles of the Special Part of the Criminal Code of the Russian Federation leads to a significant violation of the logic of the criminal law system of Russia as a whole, as well as entails the creation of irreducible inconsistencies and contradictions within the current criminal law. The lack of a holistic understanding of the basis and content of the criminal law leads to haphazard changes and transformations, which create chaos inside the criminal law document. The paper argues that the only way out of the current situation is the development of a unified concept of structuring the criminal law of the Russian Federation. The concept must be based on historical experience, on prevailing domestic political, economic and social conditions, on international legal agreements, on criminological foundations, on modern achievements in legislative technique and, of course, on the latest doctrinal research. In the first quarter of the XXI century criminal and legal doctrine has carried out a profound scientific synthesis in the structure and content of the General and Special parts of the criminal law and created all the necessary groundwork for the development of a new Criminal Code of the Russian Federation or for the proposal of a new edition of the existing criminal law. The authors declare no conflicts of interests.

At the current stage of social development, the protection of the interests of a person, society and the state from publically dangerous infringements is reaching a conceptually new level. Russian and foreign legislation, as well as theoretical publications, are paying more and more attention to the possibilities of the lawful infliction of harm under the circumstances that preclude the criminal character of an action. The abovementioned norms have a special place in criminal or other legislation because they contain clauses that allow inflicting harm on public relations protected by criminal law. Criminal legislation, recognized worldwide as penal in its essence (e.g. the Penal Code — «penal» being the synonym of «retributive», «punitive» and «vindictive») still contains a specific chapter devoted to such circumstances and includes norms that define the conditions and grounds for inflicting harm on public relations protected by criminal legislation, and this harm is recognized as lawful and even publically beneficial. These norms should be viewed as a specific legal phenomenon not only in Russian, but also in foreign criminal legislation and other types of legislation. However, the analysis of law enforcement practice does not allow to judge the effectiveness of their use by both law enforcement employees and citizens who protects their lawful rights and interests against publically dangerous infringements or engage in other publically beneficial behavior. In our opinion, the problems of law enforcement are connected with legislative support, and specifically with the area of substantive law. The authors of the article summarize many possibilities of using the norms of Chapter 8 of the Criminal Code of the Russian Federation that have not been realized yet. They take into account and stress the isolation and independence of these norms, the necessity of their presence and reflection specifically in the criminal legislation. The authors also recommend to change the method of legal regulation of the circumstances that preclude the criminal character of the action and to use it as a basis for introducing significant changes in the contents of the abovementioned norms with the aim of improving the effectiveness of their enforcement in practice.

The authors analyze publications in criminal policy, study its understanding by scholars of criminal and criminal procedure law and criminology, and present their own vision of different aspects of the development and implementation of criminal policy in the Russian Federation. They examine criminal policy as a complex pheno­menon which has law enforcement and human rights dimensions aimed at counteracting crime, as a system which includes criminal law, criminal procedure, investigation, penitentiary and criminological policies; the authors present arguments in favor of using such an approach. Criminal policy cannot be designed independently from state legal policy; it should be developed with the participation of civil society institutions and should be approved by it. The main goal of this work is to determine the basics (the principles) of Russian criminal policy, to describe their contents, interconnections and interpenetration. The authors examine and analyze different approaches to specifying the principles of criminal policy. They come to the conclusion that the principles of criminal policy differ from the principles of anti-criminal branches of law, but the latter should determine the basic clauses of criminal and criminal procedure law. It is stressed that a system of principles focusing on a common goal — crime counteraction — can only be discussed within the framework of criminal policy. The authors study the international experience of criminal policy in different countries and determine four fundamental principles of criminal policy in the member states of the Council of Europe. The analysis of modern criminal law and criminal procedure legislation with its numerous changes and amendments, the identified lack of coordination and inconsistency of the actions of lawmakers allow the authors to discuss the necessity of developing a unified criminal law, criminal procedure and penitentiary policy, i.e. criminal policy in a broad sense. They conclude that it is necessary to design a document, officially recognized at the state level, that would stipulate and reflect the basics (the principles), goals and tasks, as well as the priority directions for developing the criminal policy.

The article establishes that the modernization of Ukraine’s criminal legislation should be carried out taking into account the general principles of lawmaking, the principles of criminal law as a branch of law, as well as the special principles of criminal lawmaking, which include the principles of reasonableness, completeness of criminal law provisions, and the absence of gaps and synchronization. The principle of reasonableness is characterized by such requirements as justification, prudence, caution, and expediency. This principle means that modernization must be justified, prudent, cautious, and expedient, which together ensure the predictability of Ukraine’s criminal legislation and its adaptability to modern challenges. Justification means sufficient grounds for modernizing Ukraine’s criminal legislation, which must be substantiated primarily in the explanatory note to the amending law and accompanying documents. Prudence is a mechanism for implementing rational, balanced, and socially oriented criminal lawmaking, according to which Ukraine’s modernized criminal legislation is capable of achieving its goals while maintaining a balance between criminal law enforcement for the protection of society and respect for human rights. Prudence is a manifestation of rational and socially oriented legislative thinking based on common sense and the desire to achieve a fair balance between criminal law protection of public interests and respect for human rights and freedoms. Appropriateness implies the adaptability of criminal legislation to contemporary challenges and technological transformations and should be based on a balance between the dynamism and stability of this legislation. The principle of completeness of criminal law provisions and the absence of gaps is a strategic guideline for adapting Ukrainian criminal law to new social realities and challenges, ensuring its effectiveness, predictability, and consistency. The principle of synchronization during the modernization of Ukraine’s criminal legislation is aimed at harmonizing Ukraine’s criminal legislation both in itself (i.e., ensuring internal synchronization) and with the norms of other branches of law regulated by regulatory legislation, as well as with international norms (i.e., ensuring external synchronization).

In American criminal law, if a defendant demonstrates that they lack certain psychological capabilities, they may be excused of blame and punishment for wrongdoing. However, criminal defense law often fails to consider the developmental science of individual differences in ability and functioning that may inform jurisprudential issues of rational capacity and responsibility in criminal law. This book discusses the excusing nature of a range of both traditional and non-traditional criminal law defenses and questions the structure of these defenses based on scientific findings from social and developmental psychology. This book explores how research on individual differences in the development of social perception, judgment and decision making explain why some youths and adults develop psychological tendencies that favor criminal behavior, and considers how developmental science can guide the understanding of criminal excuses and affirmative defense law.

In the research paper, in a comparative legal mode, the legal grounds of responsibility for committing crimes of a terrorist nature are considered, using the example of Ukraine, the USA, Great Britain, France and Germany. A comparative legal analysis of national approaches to defining and countering terrorist crimes is presented. The importance of using international norms and conventions in criminal legislation to combat terrorism is substantiated. The specifics of the regulation of the mechanisms of responsibility for terrorist crimes in various legal systems are analyzed, attention is focused on preventive measures and features of the criminalization of these acts in the relevant jurisdictions. The position is formulated that the American experience is important for scientific understanding since the US federal Criminal Code regulates in detail responsibility for terrorist crimes, in particular, distinguishing between international and domestic terrorism, and also contains specific articles on the financing of terrorism, the use of weapons of mass destruction, and acts of terrorism in public places. It is argued that the French legislator also shows a serious attitude to the fight against terrorism by including several prohibitions in its criminal law, which shows the integration of international legal recommendations. Compared to this, in Germany there are significantly fewer prohibitions against terrorist crimes, and the British legislator generally uses a special law - the Terrorism Act, rather than the Criminal Code. In conclusion, it is emphasized that the study of progressive international experience in the field of combating terrorism is important for Ukrainian scientists, as it allows them to evaluate the effectiveness of the approaches of other countries and to improve the national strategy for combating terrorism. Analysis of the results of the activities of law enforcement agencies and special services of foreign countries leads to the conclusion of the need to improve the provisions of program documents and criminal legislation of Ukraine, as well as to develop new methods of combating this socially dangerous phenomenon. Separately, taking into account the European integration aspirations of Ukraine, the importance of adapting the national anti-terrorist legislation, in particular its criminal law component, to the best European standards in order to ensure an effective fight against terrorism in the context of international cooperation is emphasized.

The paper discusses formation and development of criminal legislation on the subject and subjective signs of the crime in the countries of medieval Europe within the comparative jurisprudence. The authors note that the level of culture and statehood in any society and its government bodies as a whole depends on the attitude of the society and the state to those who committed unlawful, criminally punishable acts. On the materials of criminal law in the Ancient World and the Middle Ages (Ancient Rome, Ancient Greece, etc.) a strict liability was in law-enforcement practice. New states were formed during the Middle Ages. That led to the need of strengthening their authority of state power and statehood. Consequently, the state got the right to protect the interests of the individual and society, and the right to creation a new criminal legislation and its institutions. The church survived after liquidation of many public and state institutions. On the one hand, it contributed to the preservation of scientific achievements of the Ancient World. On the other hand, the church deprived science of free critical attitude to the issues under study. Philosophy and jurisprudence were based on theology. Criminal-legal institutions could be developed only in the direction, which had been approved by the church. Clearly, the idea of protecting the rights of the individual, strict liability and conditions of sanity could not be widely applied. As soon as the states were originated, strict liability was necessary to stop the blood feud and delegation of the judiciary from the society to the state. The obtained knowledge about the world and deeper understanding of the causality of what is happening facilitated the process. From the political point of view, theology (a Christian doctrine) influenced the criminal law policy in Medieval Time. The legislator regulated a range of subjects of the crime. In X - XI centuries, ancient ideas of strict liability were accepted in Europe. Crimes were divided into willful and not deliberate. The principle of the personal guilty is directly related to the subject of the crime. Murderers, rapists, thieves, swindlers and others were declared criminals. Judicial practice of many times and peoples gives us numerous examples confirming the existence of views on the animal as a subject of crime. Age limits of legal responsibility were defined as the minority, which is different from the social maturity, and sometimes old age, were considered the reason for the undisputed crime blamed of a crime to a subject. People under 14 years old could not be subjected to the death penalty, except when "malice can make up for the lack of age". The authors pay attention to the fact that the interests of healthy individuals guided medieval jurisprudence and medicine. They also regulated peculiarities of the healthy individuals’ legal capacity, presence of dementia and mental illnesses, etc. The mitigation of punishment in some cases when the fault of the subject of the crime was absent, fixing the criminal-legal significance of the motive of the crime, intent and some other subjective features in the legislation were a progress. Studies of the Medieval European States shows that the legislator at that time did not formulate general signs of the subject of the crime and did not know the criminal legal concept of strict liability. However, there was a need to solve the problem. Thus, the paper discusses the essence of the criminal legal significance of the сorpus delicti, its place in the criminal law and law enforcement practiceю. The authors used scientific literature of both foreign and Russian

Purpose. The purpose of the work is to study the extension of the principle of retroactivity to law-making and law-enforcement practice to the legal system in Ukrainian legislation. Methodology. The methodology includes a comprehensive analysis and generalization of the available scientific and theoretical material and the formulation of relevant conclusions. The following methods of scientific knowledge were used during the study: comparative law, logical-grammatical, system-structural, modeling. Results. During the study, it was recognized that in the legislation of Ukraine, in the process of creating and implementing legal norms, general principles of law are applied, which are guided by state authorities and local governments in their activities within the framework of their competence. When adopting new regulatory legal provisions or making changes to existing ones, general principles of law must be applied. The application of the principle of retroactivity of law allows individuals and legal entities to be confident in the legal assessment of their actions not only when they are committed, but also in the future. Scientific novelty. In the process of research, it was scientifically substantiated that the criminal procedural legislation of Ukraine as a whole complies with the Fundamental Law of Ukraine and the practice of the European Court of Human Rights during criminal proceedings when changing the punishment for committing criminal offenses. Practical significance. The results of the study can be used in law-making activities in the further improvement of national criminal procedural, criminal legislation regarding the improvement of the institution of the application of punishment when improving the legislation on punishment for committing criminal offenses, as well as in the educational process during the teaching and study of the academic disciplines “Criminal Procedural Law of Ukraine”, “Criminal Law”, “Law Enforcement Activities”, “Advocacy”, others.

The article is devoted to the issues of “large-scale” improvement of special banking, tax and criminal legislation, filling gaps and eliminating contradictions between certain norms of Criminal, Civil and Banking Law. The development of entrepreneurship in general and the capital market in particular requires a radical revision of not only the Criminal Code, but also a coordinated change in the entire block of criminal law regulations. The need to take urgent measures to improve legislation is also due to the fact that the sphere of banking capital has become one of the most criminogenic sectors of the domestic economy. The article examines certain issues related to the lagging behind the formation of a system of legislative support for new monetary relations from the pace of the formation of a free market. The improvement of the capital market requires an integrated approach to the improvement of criminal, banking and tax legislation, the achievement of full consistency, a clear formulation and assimilation of the basic concepts and categories of financial activity, the formation of strong business traditions. The sphere of financial and credit relations, due to the complete absence of legal regulation of new types of activities, turned out to be open to illegal encroachments, in connection with which the author comes to the conclusion that it is necessary to include new articles in the Criminal Code of the Russian Federation aimed at protecting “civilized” entrepreneurs from criminal encroachments. In conclusion, a proposal was made on the need to supplement the criminal legislation with a number of conceptual provisions that ensure the functioning of the capital market and the protection of civilized banking.

The article presents a study of the domestic legislation of the XI–XVIII centuries, aimed at criminal law counteraction to illicit trafficking in alcoholic beverages. The relevance of the study is due to the significant number of illegal alcoholic and alcohol-containing products on the modern Russian market. Studying the historical experience of the formation of criminal legislation providing for responsibility for these acts makes it possible to identify patterns in the development of legal norms and identify the most effective criminal law mechanisms for countering such crimes. The purpose of the study is a comprehensive analysis of the formation and development of Russian legislation on combating illegal production and trafficking of alcoholic beverages, as well as identifying patterns and features of this process. The subject of the study is the criminal law norms providing for liability for acts that infringe on the legal turnover of alcoholic beverages. The research methodology is represented by a set of general scientific and private scientific methods of cognition. The following general scientific methods of cognition are used: system-structural analysis, logical analysis of texts and judgments. The historical and legal method was used as a private scientific method, which made it possible to analyze the development of Russian criminal legislation aimed at protecting the legally established procedure for the production and turnover of alcoholic beverages. The scientific novelty of the research is expressed in a comprehensive analysis of the Russian legislation of the XI–XVIII centuries, aimed at countering the illicit trafficking of alcoholic beverages. The article presents a detailed analysis of the development of criminal law norms providing for liability for the illegal production and trafficking of alcoholic beverages in Russia and in Russia from ancient times to the beginning of the XVIII century. The main focus is on the evolution of legislation in the field of combating illicit trafficking in alcoholic beverages, dubbed "korchemstvo". The paper examines in detail the first mentions of punishments for illegal alcohol trafficking in the Pskov judicial charter, the development of standards of responsibility in the era of Ivan III and Ivan IV. A special place in the study is occupied by the analysis of the punishment system for drunkenness. Special attention is paid to the reign of Peter I. The author notes that the issues of criminal law counteraction to illicit trafficking in alcoholic beverages are inextricably linked with the state policy on alcohol trafficking. Excessive restrictions on alcohol turnover imposed by the State have led to an increase in the share of the grey alcohol market and an increase in corruption in this sector.

The article is devoted to the analysis of initiatives of the national parliament, conditioned by the general desire of the legislator to bring the national criminal law closer to the requirements and standards of international conventions ratified by the Verkhovna Rada of Ukraine, as well as other normative documents. The need to implement international law in the field of criminal law, which, however, must correspond to the rule of avoiding cases of «mechanistic» borrowing of international experience, without taking into account the peculiarities and requirements of domestic legal doctrine, which has been formed for decades. The critical state of the current criminal law policy of Ukraine, the inefficiency of the criminal law influence, the inconsistency of the legislator and his hasty decisions, the strengthening of the punitive component of punishment, the lack of criminological analysis of the surrounding reality and adequate assessment of public danger. Based on the results of the study of the field of criminal law, a conclusion was formulated that the parliament did not fully take into account relevant criminological information on crime parameters, which negatively affects the quality of criminal liability law and, consequently, criminal law policy in general. It has been proven that most modern parliamentary initiatives are aimed at expanding the scope of criminal law and strengthening criminal liability. Based on specific examples, the emphasis is on the «price» for society of those legislative changes dictated by political expediency and considerations, rather than requirements to improve criminal law in view of the needs of law enforcement practice or approximation of criminal law to European standards.

The purpose of the article is to determine the connections and influence of individual theoretical teachings of the criminal law block on the formation of an interdisciplinary theory of evidence in criminal proceedings. To achieve the goal, an analysis of national criminal and criminal procedural legislation, investigative and judicial practice, scientific publications on the problems of evidence in criminal proceedings was conducted. Dialectical, historical, comparative law, logical-semantic and other methods of scientific research were used to establish a connection between the categories of criminal, criminal procedural law and criminology sciences: “composition of a criminal offense”, “subject of proof”, “traces of a criminal offense”, “evidence”. The conclusions are formulated that the theory of evidence in criminal proceedings should be considered not only from the point of view of branch doctrinal interpretation, but as a result of the integration of individual teachings of the criminal law block. This is a manifestation of the interdisciplinary connections of these sciences. Such connections are due to the commonality of the object and the proximity of the subjects of research of these sciences. The procedure of proving in criminal proceedings is carried out by identifying, fixing and analyzing material and ideal traces of a crime. This occurs when there is a certain (sometimes quite significant) period of time between its commission and detection and the beginning of the investigation, in conditions of active opposition. Taking this into account, cognition is carried out in the form of proving, which involves assessing the relevance, reliability and admissibility of the obtained factual data. For the first time, the key provisions of the theory of proving in criminal law are considered through the prism of integrating the categories of sciences of the criminal law block. On this basis, the provisions on the formation of evidence during the pre-trial investigation have been improved, the final assessment of which is carried out exclusively by the court with the participation of the parties to the criminal proceedings The ideas and proposals presented are aimed at improving the national criminal procedural legislation and the interpretation of the norms of the institute of proof. It seems that their perception will allow solving the tasks of criminal proceedings more effectively.

brill.nl/eccl © Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/157181711X587783 Union Regulatory Criminal Law Competence after Lisbon Treaty Jacob Öberg* PhD researcher, European University Institute, Florence, Italy 1. Introduction This article analyse the scope of the Union’s regulatory criminal law competence subsequent to the ratification of the Lisbon Treaty. The article is primarily focussed on examining what legal limitations that can be imposed on the Union’s competence to impose criminal penalties under the new legal basis in Article 83(2) TFEU. The examination will also analyse and scrutinize the scope of the Union’s criminal law competence in the light of the principle