Criminal Law. Self-Defense. Duty of Retreat before Killing

1931 ◽  
Vol 17 (3) ◽  
pp. 294
Keyword(s):  
Criminal Law ◽  
Self Defense

CODIFICATION PROBLEMS OF NECESSARY DEFENSE AFFECTING ITS IMPLEMENTATION

2020 ◽  
Vol 10 (3) ◽  
pp. 155-163
Author(s):  
PETRUSHENKOV ALEXANDR ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Criminal Code ◽  
Educational Institutions ◽  
Scientific Article ◽  
Teaching Staff ◽  
Self Defense ◽  
Special Part ◽  
The Russian Federation ◽  
Legislative Activities

Objectives. The goal of scholarly research is to develop proposals for amendments in criminal law General and Special part of Criminal code of the Russian Federation governing self-defense. The scientific article identifies legislative gaps and contradictions that hinder the effective implementation of the necessary defense and require prompt solutions. Methods. The article analyzes such concepts as “self-defense”, “public assault”, “excess of limits of necessary defense”, “violation of the conditions of lawfulness of necessary defense”, “surprise assault”, “rights defending or other persons, interests of the state”. The use of logical and comparative legal methods allowed us to develop proposals for making changes to the criminal law norms that establish the necessary defense. Conclusions. The article shows the conflicts and gaps legislative recognition of self-defense and, in this regard, the complexity of its implementation in the articles of the Special part of the Criminal code of the Russian Federation and practical application. Changes are proposed to the criminal law norms regulating the necessary defense, both in the General and in the Special part of the Criminal code of the Russian Federation. Sense. The content of the scientific article can be used by the teaching staff of higher educational institutions when teaching the course “Criminal law”. The results of the work can be useful to persons who carry out legislative activities in the field of criminal law. The leitmotif of the article can be used in the preparation of dissertation research.

Reflections on the existence of the science of criminal law

2021 ◽  
pp. 156-161
Author(s):  
I. Mytrofanov
Keyword(s):  
Social Justice ◽  
Public Relations ◽  
Criminal Law ◽  
The State ◽  
Crime And Punishment ◽  
Self Defense ◽  
Illegal Acts ◽  
The Subject ◽  
The Individual ◽  
The Right

The article states that today the issues of the role (purpose) of criminal law, the structure of criminal law knowledge remain debatable. And at this time, questions arise: whose interests are protected by criminal law, is it able to ensure social justice, including the proportionality of the responsibility of the individual and the state for criminally illegal actions? The purpose of the article is to comprehend the problems of criminal law knowledge about the phenomena that shape the purpose of criminal law as a fair regulator of public relations, aimed primarily at restoring social justice for the victim, suspect (accused), society and the state, the proportionality of punishment and states for criminally illegal acts. The concepts of “crime” and “punishment” are discussed in science. As a result, there is no increase in knowledge, but an increase in its volume due to new definitions of existing criminal law phenomena. It is stated that the science of criminal law has not been able to explain the need for the concept of criminal law, as the role and name of this area is leveled to the framework terminology, which currently contains the categories of crime and punishment. Sometimes it is not even unreasonable to think that criminal law as an independent and meaningful concept does not exist or has not yet appeared. There was a custom to characterize this right as something derived from the main and most important branches of law, the criminal law of the rules of subsidiary and ancillary nature. Scholars do not consider criminal law, for example, as the right to self-defense. Although the right to self-defense is paramount and must first be guaranteed to a person who is almost always left alone with the offender, it is the least represented in law, developed in practice and available to criminal law subjects. Today, for example, there are no clear rules for the necessary protection of property rights or human freedoms. It is concluded that the science of criminal law should develop knowledge that will reveal not only the content of the subject of this branch of law, but will focus it on new properties to determine the illegality of acts and their consequences, exclude the possibility of using its means by legal entities against each other.

scholarly journals Extrajudicial Forms of Protecting Rights and Freedoms of a Person in the Field of Criminal Law Relations: Conceptual Aspects and Improvement of State Response

2021 ◽  
Vol 15 (2) ◽  
pp. 210-219
Author(s):  
Alexander Smirnov ◽  
Andrey Santashov
Keyword(s):  
Social Relations ◽  
Criminal Law ◽  
Legal Status ◽  
Criminal Liability ◽  
Cultural Development ◽  
Psychological State ◽  
Criminal Prosecution ◽  
Russian Society ◽  
Self Defense ◽  
Legal Forms

The article describes the conceptual basis for a new special research theory — extrajudicial forms of protecting rights and freedoms of a person in the field of criminal law relations. The authors introduce the concept of these forms and their system consisting of legal and non-legal forms of such protection. It is concluded that the reaction of the state to the implementation of legal extrajudicial forms of protecting rights and freedoms of a person in the field of criminal law relations should be improved with the purpose of ensuring greater justice when making decisions on criminal prosecution for the self-defense of the legal status of a person in the analyzed sphere of relations. The authors offer a number of suggestions on changes and amendments to the Criminal Code of the Russian Federation that would improve the effectiveness of this reaction. On the other hand, non-legal forms of self-defense in the field of criminal law relations should be prevented. The authors present a list of factors determining the existence of these forms in the Russian society, some of which, due to certain circumstances both in the past and present period of the deve­lopment of Russian state and society, have an «excusable» character. These factors include both global (the spread of various discrimination practices, ideas of extremism and religious radicalism; the escalation of violence) and national factors (historical predetermination of state and public development; features of cultural development of the Russian society; specifics of the implementation of state policy and public administration activities; drawbacks of criminal law regulation of social processes and law enforcement activities; destructive practices of social relations; moral and psychological state of the society; influence of propaganda; defective educational and pedagogical influences, etc.). The authors also present a system of preventive measures aimed at eradicating non-legal forms of the analyzed extrajudicial protection. This system includes measures of developing a state reaction to crimes that would correspond to social expectations, ensuring a greater strictness of criminal law, unavoidability of prosecution, as well as measures of moral rehabilitation of the Russian society, raising the level of its legal conscience and culture. The authors suggest the introduction of a norm that establishes criminal liability for usurping the power of the court connected with the administration of justice.

scholarly journals Overmacht Dalam Tindak Pidana Penganiayaan Yang Menyebabkan Korban Meninggal Dunia Perspektif Fiqh JinÂyah

2015 ◽  
Vol 1 (2) ◽  
pp. 327-335
Author(s):  
Muhammad Riza Fahmi
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
District Court ◽  
Public Prosecutor ◽  
The Public ◽  
Self Defense ◽  
Conditional Sentence

Abstract: The Judge’s ruling in the legal decition of the Lamongan District Court No. 164/Pid.B/2013/PN.LMG on the crime of persecution that causes the death of the victim is regarded true since it has been fulfilled all elements as required by Article 351 Paragraph (3) of Criminal Code as indicted by the public prosecutor. In deciding this case, the judge also considered the testimony of witnesses, the information from the defendant, the facts revealed at the hearing as well as the things that burdensome and relieve the defendant. Therefore, the defendant shall be sentenced for 5 months in prison and does not have to go through due to the imposed conditional sentence. In Islamic criminal law, the case is equated with a semi-deliberate murder and sanctioned by diyât and kafârat in the form of ta’zîr. In this case, the defendant can not be punished because of his self-defense. So that the defendant is free from a criminal liability in Islam.Keywords: Persecution, victim died, Islamic law. Abstrak: Putusan hukum hakim Nomor: 164/Pid.B/2013/PN.LMG tentang tindak pidana penganiayaan yang mengakibatkan korban meninggal dunia berdasarkan telah terpenuhinya semua unsur-unsur dari pasal 351 ayat (3) KUHP seperti yang didakwakan oleh jaksa penuntut umum. Dalam memutuskan perkara ini hakim juga mempertimbangkan keterangan saksi, keterangan terdakwa, fakta-fakta yang terungkap di persidangan, serta hal yang memberatkan dan meringankan terdakwa. Oleh karena itu, terdakwa dipidana dengan 5 bulan penjara dan tidak perlu menjalaninya dikarenakan dikenakan hukuman bersyarat. Dalam fiqh jinâyah, perkara ini disamakan dengan pembunuhan semi sengaja. Untuk sanksinya yaitu membayar diyat dan kafârat, sedangkan untuk hukuman penggantinya berupa hukuman ta’zîr. Dalam kasus ini, para terdakwa meskipun telah melakukan perbuatan tersebut, namun tidak bisa dikenakan hukuman tersebut, karena adanya unsur pembelaan diri, sehingga terbebas dari pertanggungjawaban pidana dalam Islam.Kata Kunci: Penganiayaan,  meninggal dunia, Hukum Islam. 

scholarly journals La legítima defensa en Derecho Internacional Penal: análisis de sus elementos con particular referencia a los crímenes de guerra

2019 ◽  
Vol 5 (8) ◽  
pp. 230-275
Author(s):  
Christopher A. Servín Rodríguez
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Self Defense ◽  
Third Person

The present investigation analyzes the elements of self-defense in International Criminal Law with particular reference to war crimes. In that regard, article 31.1, subsection C, of the Rome Statute is examined to demonstrate that self-defense in relation with crimes against humanity, genocide and aggression protects the person who exercise it and a third person, but in relation with war crimes, its protection also covers, without precedent, property. Nevertheless, this could be contrary to International Humanitarian Law.

The history of the formation and development of the institute of necessary defense in Russian criminal law

2021 ◽  
Author(s):  
Nikita Grudinin
Keyword(s):  
Criminal Law ◽  
Historical Aspects ◽  
Self Defense ◽  
History Of

The article deals with the historical aspects of the formation and development of the institute of necessary defense in Russia. The author of the article mentions that the centuries-old history of the development of this institute has developed a criterion that establishes the possibility of self-defense and protection of the rights and freedoms of other people from socially dangerous encroachments, regardless of whether the defending person can resort to the help of others.

scholarly journals Criminal Punishment as a Restorative Practice

2015 ◽  
Vol 18 (4) ◽  
pp. 537-574
Author(s):  
Liat Levanon
Keyword(s):  
Criminal Law ◽  
Mutual Recognition ◽  
Critical Evaluation ◽  
Fair Play ◽  
Crime And Punishment ◽  
Current Trends ◽  
Personal Boundaries ◽  
Self Defense ◽  
The Subject ◽  
Theoretical Foundations

This article offers a conceptualization of crime and punishment that serves to explain current trends in criminal law doctrine and, at points, recommends their reconsideration. Drawing on Hegel's concept of mutual recognition and on insights developed in fair-play accounts of punishment, the article suggests that crime disrupts the subject-subject relation between the victim and the offender, and that punishment works to restore this relation. To advance this argument, the article first proposes that subjects can only exist in equilibrium of connectedness and separateness whereby they mediate each other's equal personal boundaries. It then analyzes crime as a failure by the offender to mediate the victim's equal boundaries, which creates inequality of boundaries and brings about the collapse of the equilibrium and of the victim's subjectivity. Next, it is suggested that punishment re-equalizes the parties' respective boundaries, thus restoring the disrupted equilibrium and the victim's subjectivity. The article then demonstrates that this conceptualization helps explain current developments in areas such as mens rea and justificatory defenses, and that it further provides theoretical foundations for critical evaluation of well-established doctrines such as self-defense and attempt.

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