No 1 (2020)

The paper analyzes the problems of legal regulation and practice of classification of crimes violating special rules and requirements of conduct. The author notes that concerning such elements of crimes, it is a case of mandatory behavior (active or passive), which is expected from special liable parties of such legal relations. These people act as special subjects of the considered structures and special liable parties. In general, crimes violating special rules and requirements of conduct are characterized by such features as a special formality and special wrongfulness. The author carried out the analysis using the example of crimes against the procedure of special (security) types of military service, the responsibility for committing of which is provided by Articles 340-344 of the RF Criminal Code and special liable parties of which are military personnel. The author notes that the rules for security types of military service are predominantly not consolidated and are contained in a variety of separate legal acts of other industry affiliation. The paper states that the diversity, fragmentation, specificity, and limited availability of relevant acts and rules and requirements stipulated by them cause difficulties when determining the objective features of the considered elements of crimes in terms of determining certain special rules that have been violated. The author concluded that special blanket wrongfulness of crimes violating special rules and requirements of conduct is manifested in the fact that the legislator, in the relevant articles of Special part of the RF Criminal Code, only indicates the violation but does not specify how exactly it is expressed since it is impossible to do this objectively. In this regard, when classifying such crimes, it is necessary to assess the requirements of legal acts of other industry affiliation to disclose the essence of a criminal law norm.

The attempts of the Russian legislator to improve the system of preventive measures by introducing certain modifications to the criminal procedure code of the Russian Federation turned out to be ineffective. To solve this problem, the authors proposed the hypothesis that criminal procedural coercion should be considered as a system whose integrity and balance are determined by the internal and external factors. As one of the factors determining the content, structure, composition, and scope of the preventive measures institution, the authors considered the procedural statuses of officials and accused persons, suspects involved in legal relations on the application of preventive measures. According to the results of the study, based on the systematic approach and dialectical methodology, the authors formulated and justified proposals aimed at creating an optimal system of preventive measures, primarily by improving the procedural status of participants in criminal proceedings. In particular, they proposed: 1) to consider the application of preventive measures the responsibility of an official who performs procedural activities at the appropriate stage of the proceedings; 2) at the legislative level, to clarify the content of the control function of the court when applying preventive measures in pre-trial proceedings; 3) to add articles 46 and 47 of the Criminal procedure code of the Russian Federation with the provisions containing the full list of procedural duties of the suspect and the accused; 4) to differentiate the grounds for different types of preventive measures; 5) to establish the obligatoriness of obtaining the consent of the accused or suspect to apply preventive measures that are not related to detention; 6) to change the structure of the preventive measures institution, highlighting the main (subscription of appropriate behavior and detention) and alternative or additional (other types) of preventive measures.

In the last few years, the number of frauds with electronic payment instruments increases. It is caused by the possibility to withdraw money from plastic cards through the use of various facilities without personal identification. The author carried out the analysis of theoretical and practical issues of application of criminal law on the liability for fraudulent use of electronic payment instruments. The analysis shows and assesses the gaps in the structure of criminal elements under the study, offers legislative methods for their correction. The author analyzes the points of view of Russian scientists concerning the understanding of the term “electronic payment instrument” and its types, formulates the attitude of relative recognition of gift cards and certificates giving the right to buy goods for the amount equivalent to their cost as a payment instrument. The study focuses on the interpretation of a subject of fraudulent use of electronic payment instruments, demonstrates practical examples of bringing the perpetrators to responsibility. The author considers the scientists’ opinions concerning the issue of classification of action of a fraudster who pays in a shop with a stolen plastic card through the noncontact methods of payment. The paper reveals the problems of the application of changed criminal law standards concerning the responsibility of perpetrators. The author concludes on the necessity of additional explanation on the issues relating to the delimitation of allied and competing fraud elements, on the absence of specifics in understanding and application of the considered criminal law norm in current reality, as well as on the necessity of reforming of this norm.

The study of the procuracy activity on the implementation of supervision over operative search activity is very important. The analysis of litigation practice showed that violations detected by the procuracy considerably influence criminal investigations. The paper deals with the problems of the procuracy supervision over the activities of investigative agencies. The author analyzes various acts of prosecutorial response as the legal measures when detecting, eliminating, and preventing violations. The paper considers special aspects of the legal and regulatory framework of procuracy supervision within operative search activity, defines the concept and the place of supervision, specifies the legal power of a procurator when supervising, identifies main violations emerging when carrying out such activity, and gives the recommendations on their minimization. As a part of the study, the author identified the following weaknesses of procuracy supervision in operative search activity: the limitation of constitutional rights of citizens when carrying out operative search activity by the law enforcement officers; the absence of the mechanism of application of the materials of operative search activity in criminal procedure within criminal legislation; inefficiency of procuracy supervision over the operative search activity. To overcome some specified imperfections, the author formulated the following recommendations. It is necessary to organize the proper work of the detective units on the enforcement of all statutory requirements during the criminal intelligence procedure. When carrying out operative search activity, the officers’ activity should correspond to the norms of the law. All operative search activity should be carried out when having adequate arguments only, which meet the purposes and tasks of operative search activity.