التفاصيل البيبلوغرافية
| العنوان: |
Role of the Plenum of Russian Supreme Court in the judicial practice formation |
| المؤلفون: |
Yu. S. Pestereva, I. G. Ragozina, E. I. Chekmezova |
| المصدر: |
Правоприменение, Vol 5, Iss 4, Pp 209-225 (2022) |
| بيانات النشر: |
Dostoevsky Omsk State University, 2022. |
| سنة النشر: |
2022 |
| المجموعة: |
LCC:Law |
| مصطلحات موضوعية: |
supreme court, plenum of the supreme court, criminal law, judicial discretion, judicial practice, interpretation of criminal law, sex crimes, property crimes, crimes against public health, Law |
| الوصف: |
The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation. |
| نوع الوثيقة: |
article |
| وصف الملف: |
electronic resource |
| اللغة: |
Russian |
| تدمد: |
2542-1514 |
| Relation: |
https://enforcement.omsu.ru/jour/article/view/572; https://doaj.org/toc/2542-1514 |
| DOI: |
10.52468/2542-1514.2021.5(4).209-225 |
| URL الوصول: |
https://doaj.org/article/7270516accbd451199a161f36f7319a0 |
| رقم الانضمام: |
edsdoj.7270516accbd451199a161f36f7319a0 |
| قاعدة البيانات: |
Directory of Open Access Journals |