Collisions in Legal Interpreting the Victim Helplessness Signs in Different Crimes

The subject. Compliance with the term for the implementation of the inheritance rights for persons wishing to become successors of a deceased citizen is an important condition for acquiring rights to hereditary property. Nevertheless, frequently, owing to various reasons, citizens from among the heirs cannot comply with the procedure established by law, which, in most cases, engenders the need referring to the court with a inquire about extension of the deadline to recognize the right to inherited property. The court will be able to satisfy the stated requirements if there is a valid reason, which prevented the heir from exercising his right.The purpose of the article.The authorsdare to determine whether a disease, including a new coronavirus infection COVID-19, can be considered as a respectful reason for a recovery period for acceptance of the inheritance. The established objective has determined the need to solve the following tasks: (1) to analyze the legal reasoning of the disputed issue in the doctrine; (2) to study jurisprudence on the subject of the study; (3) to assess how fully the rules of Article 1155 of the Civil Code of the Russian Federation are applicable in relation to the citizens from whom it is potentially impossible to get out of a diseased state; (4) to offer our own perspective on the issue.Research methods are systematic approach and formal legal analysis of doctrinal sources and the existing Russian legislation and law application practice.The main results of a study. It is shown that not every painful condition can be regarded as a valid reason for restoring the term of inheritance acceptance under Article 1155 of the Civil Code of the Russian Federation. The existing science means do not allow us to formulate a final conclusion on the issue under study. Therefore, taking into account the evaluative nature of the rule applied, only the law enforcement body is able to make a decision, fully analyzing the relevant circumstances.Conclusions.When considering cases on the restoration of the term of acceptance of inheritance due to illness, the courts need to take into account a combination of factors: the nature of the disease, its duration, treatment conditions, prognosis of the disease, the degree of social adaptation of the heir. The rules of Article 1155 of the Civil Code of the Russian Federation regarding the establishment of a six-month period for applying to the court need to be revised. Their use is unjustified, and compliance is impossible in the event that a person's exit from a painful state is not expected, while due to the course of the disease, the heir is unable to declare his rights.

Section: Covid-19 как уважительная причинаunclassified

Illness as a valid reason for restoring the term of inheritance acceptance

Khodyreva,

Khodyrev

2024

“…В частности, в одних работах беспомощное состояние рассматривалось как квалифицирующий признак убийства [1][2][3][4][5], в других -как конструктивный признак изнасилования и насильственных действий сексуального характера [6][7][8][9]. В отдельных исследованиях поднимались вопросы о соотношении бессознательного и беспомощного состояний [10][11][12][13][14]; о толковании иных критериев беспомощного состояния [15][16][17][18][19][20][21][22]; а также о закреплении беспомощного состояния в законодательствах зарубежных стран [23][24].…”

Section: ____________________________________________unclassified

“…Во-первых, терминологической неоднозначностью разъяснений Пленума Верховного Суда РФ. В 15 . Сторонники отнесения бессознательного состояния к беспомощному (см., напр.…”

Section: психическая беспомощность и бессознательное состояниеunclassified

The helplessness of the victim: theoretical views and law enforcement practice

Gostkova

2023

The subject of the study is the helplessness of the victim as a criminal legal category. The purpose of the research is to confirm the hypothesis about the negative impact of the evaluative nature of the sign "helpless state of the victim" on the unity of law practice. The historical and legal method allows us to consider doctrinal views and case law of applying norms containing the helpless state of the victim in different historic periods; using the comparative legal method, differences in the interpretation of the victim's helpless in different criminal laws are revealed; the formal legal method allows us to explore the technique of legislative recognition of the helpless state of the victim as constructive, qualifying signs and aggravating circumstances; logical methods contribute to the gener- alization of the results of the analysis of case law.The main results. It is established that the existing definitions of the helpless state of the victim, as a rule, are based on the objective inability of the person to actively resist. Based on the various reasons that cause the helpless of the victim, the following types are distinguished: physical and mental. Two categories of persons are recognized as physically helpless: those who are unable to resist due to internal factors (state of health) and external (related persons). The list of diseases that form physical helplessness is open. However, the court, as a rule, refers to disability or difficulties in movement. It is important when imputing physical helplessness to establish the fact that the victim was in such a state before the start of the committing of the criminal intent. Otherwise, it forms the objective side of the crime. The court, when determining mental helplessness, mainly focuses on the expert opinion. A controversial issue in the doctrine of criminal law remains the attribution of unconsciousness to helpless state in crimes against life and health. The Court takes the position of not attributing. In this case, it seems illogical to recognize a bound person as helpless.In order to maintain the unity of practice, a critical analysis of the approaches existing in the theory of criminal law, the grounds for strengthening criminal responsibility for a crime against a helpless person, has been carried out. These include: method, protection of socially poorly protected groups, peculiar ferocity, provoking factor, cynicism. Taking into account the specifics of crimes against sexual freedom and sexual inviolability and against life and health, it seems more logical to formulate different grounds for them: as a way of committing a crime and as protection of socially poorly protected groups, respectively.Conclusions. The hypothesis about the lack of unity in doctrine and law enforcement practice regarding the content of the "helpless state" sign of the victim was confirmed. It should be noted that the existing discussion is largely due to the ambiguous position of the Russian Supreme Court. In order to resolve the existing contradictions, it is proposed to determine the fundamental point: the basis for strengthening criminal responsibility.

“…Восполняя данный пробел, Пленум Верховного Суда РФ разъясняет, что к развратным действиям надлежит относить любые действия, кроме полового сношения, мужеложства и лесбиянства, совершённые в отношении лиц, достигших двенадцатилетнего, но не достигших шестнадцатилетнего возраста, которые были направлены на удовлетворение сексуального влечения виновного, или на вызывание сексуального возбуждения у потерпевшего, или на пробуждение у потерпевшего интереса к сексуальным отношениям. При этом развратными могут признаваться и такие действия, при которых непосредственный контакт виновного с телом потерпевшего отсутствовал, включая действия, совершённые с использованием сети «Интернет» или иных информационно-телекоммуникационных сетей 13 .…”

Section: размытость содержания и способов совершения развратных действийunclassified

The practice of applying the norms on responsibility for sexual crimes (Articles 131-135 of the Criminal Code of the Russian Federation) and ways to improve it

Bimbinov

2022

The subject. The article reflects the progress and results of the study of the practice of applying the norms on responsibility for crimes against sexual inviolability and sexual freedom of the individual (Chapter 18 of the Criminal Code of the Russian Federation). There are a large number of general and specific law enforcement problems that do not allow us to effectively counteract such crimes.Purpose of the study. The purpose of the study is to confirm the scientific hypothesis about the presence of systemic problems in the practice of applying the norms of Chapter 18 of the Criminal Code of the Russian Federation, as well as to develop proposals for improving law enforcement.Methodology. The identification of law enforcement problems was carried out by analyzing published and unpublished materials of judicial practice and comparing them with the main categories and principles of criminal law. Access to the published materials was carried out through the legal reference systems and the State Automated System "Justice". Unpublished materials were obtained in the course of their own professional activities, as well as when studying the scientific works of other authors. The use of previously obtained results of their own scientific activities, the results of scientific research of modern criminologists and criminologists, as well as the study of the experience of foreign countries allowed us to formulate proposals for solving the identified problems.The main results. In the course of the study, the following systemic problems of law enforcement were identified. (1) The uncertainty of the content of other sexual actions. (2) The ambiguity of the legal assessment of the multiplicity of crimes against sexual inviolability and sexual freedom of the individual. (3) The blurring of the content and methods of committing depraved actions.These problems characterize the current state of the practice of applying the norms of Chapter 18 of the Criminal Code of the Russian Federation.To solve these problems and improve law enforcement, the following proposals are justified and formulated.At the level of the resolution of the Plenum, it should be clarified that other actions of a sexual nature are contact forms of the perpetrator's influence on the victim's body that can satisfy sexual needs, with the exception of sexual intercourse, sodomy and lesbianism (for example, masturbation, fellatio, forced kisses, manual influence on the mammary glands or genitals and other ways of stimulating sexual arousal).On the issue of the qualification of continuing crimes, the Plenum of the Supreme Court should indicate that repeated sexual acts that form the objective side of one corpus delicti should be considered as a single continuing crime, if their commission was covered by a single intent. At the same time, such intent may be evidenced by the behavior of the perpetrator, in which he does not stop the violation of sexual freedom or sexual inviolability of a particular victim.The provisions of the resolution of the Plenum of the Supreme Court concerning the qualification of depraved acts should be changed, indicating that depraved acts are other sexual acts that are not covered by the dispositions of Article 134 of the Criminal Code of the Russian Federation, and actually depraved acts committed without direct physical contact in order to satisfy sexual needs or arouse the victim's interest in sexual acts. It is also important to emphasize that the acts provided for in the note to Article 131 of the Criminal Code of the Russian Federation should include only other actions of a sexual nature.Conclusions. In conclusion, it should be noted that the proposals formulated to solve the identified problems of law enforcement cannot completely eliminate them. The solution to these problems should be found through legislative changes. In this activity, it seems correct to focus on the positive experience of European legislators, which provides for a more detailed differentiation of responsibility depending on the features that objectively affect the nature and degree of public danger of the act.