“Dead” special provisions of the criminal law as a criterion of excessive (unjustified) specialization
DOI:
https://doi.org/10.21638/spbu25.2022.104Abstract
Special norms in the criminal law, as a rule, are designed to solve the problem of differentiation of responsibility, so they must contain such features of the composition that significantly change the typical degree of public danger of the act and (or) the figure. These norms are constructed using the casuistic method, which is due to their nature and focus on reflecting social relations that are objectively differentiated by the criterion of public danger. The increase in the number of special criminal law norms indicates a steady trend of specialization of the criminal law, which, in the absence of signs of redundancy, is quite normal. The excess of specialization manifests itself in “overcriminalization” or, in other words, socially non-conditioned criminalization of acts that already fall under the regulation of the current law, but are artificially singled out by the legislator through the casual use of a particular attribute. As the analysis of the latest criminal law novels shows, the status and role position of the guilty person acts as the specified feature in most cases. Its appearance in the crime as a special feature of the subject means that the legislator assumes criminal protection of a certain segment of public relations, in which the subject is a participant, and the encroachment on which is possible only under this condition. As a rule, in practice, these special rules are either not applied at all, or are applied in isolated cases, which is one of the indicators of unjustified criminalization and, consequently, excessive specialization. In science, the opinion is expressed that the so-called “dead” norms in the criminal law are designed to solve the problem of preventing the relevant acts, which, in our opinion, is an attempt to justify intensive lawmaking. Given that this is an unjustified criminalization, such protection by the criminal law is artificial due to the lack of an objective need for it. The reason for the appearance of appropriate special norms, as a rule, is the political conjuncture, the essence of which ultimately boils down to demonstrating efforts to combat crime, which in science is precisely called “imitation”.
Keywords:
criminalization, specialization, differentiation of responsibility, special norms, status- role characteristics
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