Theory of justification of the criminal law: current status and problems of application

Abstract

The relevance of the study is determined by the fact that the legislator and the law enforcement officer allow deviations from the social and legal foundations at all stages of the formation and application of the criminal law. Therefore, the subject of research is, on the one hand, incorrectly formulated norms of the Criminal Code of the Russian Federation, draft amendments to them, unjustified application of the law. On the other hand, there are theoretical and normative constructions existing for a given historical period, designed to prevent the emergence of such norms and their application. These include the theory of substantiation of criminal law, including its most developed part - the theory of criminalization of acts, regulations on the examination of laws and their application. In this regard, the purpose of the study is to identify the causes of failure, failure of these structures and to determine the way to solve the problem. The study was carried out using such general logical methods of cognition as systemic, comparative-legal; analysis, synthesis, induction, deduction. Analyzed: 4 laws and bills (No. 5, 8, 9, 18), 7 decisions of the Constitutional Court of the RF over the past 5 years (No. 1-4, 15, 17), which offer a different constitutional interpretation of the unjustified norms of the Criminal Code of the RF; materials of judicial practice on the norms incorrectly fixed in the Criminal Code or applied by the courts, carried out by the author and other researchers (No. 6, 12, 13, 14); monitoring data of the expertise of the law officially conducted in Russia and its application for compliance-inconsistency with the social and legal foundations of the criminal law (52). It has been carried out the analysis and synthesis of the authors' views on the components of the concept, the criteria for the criminalization of acts, the substantiation of the law, named in 18 studies (No. 19-21, 26-29, 31-41, 52 (monographs, dissertations, journal articles) its use in applied research, as well as 13 studies devoted to a broader substantiation of the law than criminalization (22-25, 30, 44-51). Sociological, philosophical and other studies have been analyzed (No. 7, 11, 42, 43). The system analysis made it possible to draw both intermediate and final conclusions obtained as a result of the study. As a result of the study, it was revealed that: 1. Criminalization is the most important stage in the process of substantiating a law, but it does not cover all the factors that must be taken into account for its substantiation. This is within the scope of the theory of the justification of the criminal law. 2. But neither the theory of criminalization of acts, nor the theory of justification are not fully developed as integral theories. 3. In this state, they are not fully used by researchers, legislators, law enforcement officials or experts. Therefore, the first block of the theory of justification - the criminalization of acts and all others (consolidation of the signs of an act in the main composition, qualified, norm, etc.) require systematization of existing knowledge, further research of social and legal factors of justification of the law in various aspects and generalization of their results. Such a study is within the capabilities of a large federal research center that unites the potential of researchers from different regions of Russia and other countries. The author declares no conflicts of interests.