Comparative criminal law

Comparative criminal law is a branch (section) of jurisprudence (legal science) that studies the criminal legal systems of various states by comparing criminal law institutions of the same name, their basic principles and categories, studying their history and patterns of development.

Content

Value

The historical major efforts of the comparativists were focused on a comparative analysis of private law systems. Thus, in the classic book by René David “The Basic Legal Systems of the Present” criminal law issues are practically not considered. In the fundamental 17-volume edition of the International Encyclopedia of Comparative Law, criminal law issues are also not addressed ^[1] .

At the same time, at present, a comparative study of criminal law systems is becoming quite important due to the fact that globalization processes require a certain unification of criminal legislation , which allows to facilitate the interaction of law enforcement agencies of different states. In addition, methods of comparative law are an important part of any research aimed at improving existing national criminal law ^[1] .

Another important area of application for the comparative analysis of criminal law is international criminal justice that has been actively developing in recent decades. In addition, the results of such an analysis are used in the implementation of various kinds of international legal norms in national legislation (first of all, norms of international humanitarian law and generally accepted principles and norms relating to human rights ) ^[1] .

History

The first significant studies on comparative criminal law date back to the mid-nineteenth century. Thus, in the full volume Comparative Criminal Law ^[2] ( ital. Corso completo di legislazione penale comparata ), published in 1852 by Luigi Zupetta , a comparative description of the criminal laws of France, Austria, Piedmont, Modena was given. , Tuscany and Sicily ^[1] .

At the end of the 19th century, a two-volume edition “Modern Criminal Law in Comparative Presentation” ^[3] ( German Die Strafgesetzgebung der Gegenwart ) was published in Germany, edited by Franz von List and Georg Krusen . The first volume dealt with the criminal legislation of European countries, and the second with other countries of the world ^[1] .

Since the beginning of the 20th century, organizations have emerged that allow to unite efforts to study the criminal law of different states and facilitate its comparative analysis. In 1924, the International Association of Criminal Law (IAPM) was established in Paris. This organization was an important platform for the exchange of experience between lawyers from different states ^[1] . In 1938, the Max Planck Institute for Foreign and International Criminal Law ( Max-Planck-Institut für ausländisches und internationales Strafrecht ) was founded in Freiburg . In 1973, at the suggestion of Mark Ansel , known for his research in the field of comparative law, the Center for the Study of Criminal Policy was established ^[4] .

Since 1955 in the Federal Republic of Germany, and since 1957 in the USSR (translated into Russian), a multi-volume publication “Modern Foreign Criminal Law” has been published. The first volume was devoted to the law of Argentina, Denmark, Japan and Yugoslavia ^[1] .

The French Center for Comparative Law ( fr. Center français de droit comparé ) also publishes an international scientific journal on comparative criminal law: “Journal of Criminal Law and Comparative Criminal Law” ( fr. Revue de science criminelle et de droit pénal comparison ) ^[4] .

One of the most recent studies in this field is Jean Pradel ’s monograph “Comparative Criminal Law” ( fr. Droit pénal comparé ), published in 1995 and 2002, reviewing the laws of France, Germany, Italy, England, USA, Canada and Switzerland ^[4] .

Comparative Criminal Law in Russia and the USSR

A comparative study of criminal law has a long tradition in Russia. In the course of criminal law, published in 1902 by N. S. Tagantsev , the description of all institutions of criminal law was accompanied by a comparative analysis of Russian and foreign legislation, and there was also a general chapter on criminal law of foreign countries. S. V. Poznyshev during this period wrote: “a comparative study of criminal law should occupy a very prominent place in the content of science” ^[5] .

In the Soviet period, the study of foreign criminal law wore a distinct ideological orientation. Comparative law was faced with the task of demonstrating the advantages of socialist criminal law, its progressive nature. Therefore, although the analysis of bourgeois criminal law was present in most published monographs and textbooks, it had a clear critical bias ^[4] . Such groups of countries as “bourgeois countries”, “developing states” and “countries of the socialist community” were clearly distinguished. The study of the rights of each of the groups was carried out separately ^[6] .

Only a few scholars in this period specialized in directly studying the systems of foreign criminal law. Among the most significant specialists in the comparative criminal law of the Soviet period are F. M. Reshetnikova , L. R. Syukiyaynen (engaged in research on Muslim criminal law ), I. D. Kozochkina (who did a lot of work on publishing translations and collections of foreign acts of criminal law ) ^[6] .

Only in the 1990s does a comprehensive study of the main criminal and legal systems of the world begin, not limited to ideological frameworks. In 1994, S. Boronbekov published a textbook entitled “Modern Criminal Law Systems and Schools” ^[7] . Scientific articles on the comparative analysis of criminal law systems and their development trends are also beginning to be published ^[8] .

A significant number of publications devoted to the consideration of the institutions of criminal law of specific countries. Training courses in criminal law of foreign countries are issued, which describe the criminal law systems of Germany, France, England, USA, Japan, Italy ^[9] . In many works, separate criminal law institutions are considered in a comparative legal context ^[10] .

Since 2001, the publishing house “Legal Press Center” has been publishing the “Criminal Legislation of the World” series, which presents translations of criminal codes and other criminal legal acts of a large number of countries of the world.

In the 21st century, the first comprehensive studies in the field of comparative criminal law appear, not only describing the criminal law of foreign states, but also producing a comparison and comparative analysis of norms relating to different legal systems. The appearance of comparative criminal law as an independent branch of scientific knowledge ^[6] is associated with their appearance.

At the same time, the first general works on comparative criminal law, as a rule, affected a limited number of countries. For example, in the work of A. Malinovsky , the laws of Russia, the People's Republic of China, Spain, Poland, Germany, France, Switzerland, England and the USA are examined; in the study of A. Korchagin and A. Ivanov - Holland, Spain, China, North and South Korea, Russia, USA, Germany and Japan ^[11] .

However, work began to appear using a more universal approach. Thus, the monograph by G. A. Esakov is devoted to the consideration of the criminal law systems of the world, their historical development and characteristic features ^[12] . Released in 2009, the work of V.N. Dodonov “Comparative Criminal Law. The general part is based on an analysis of the legislation of more than 130 states, with the most important institutions (such as the death penalty) described in it for almost all countries of the world. In 2010, the monograph of V.N. Dodonov, O.S. Kapinus , S.P. Scherby “Comparative Criminal Law. The special part.

Notes

↑ ¹ ² ³ ⁴ ⁵ ⁶ ⁷ Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 3. - 448 p. - ISBN 978-5-93295-470-6 .
↑ The first volume , the second volume , the third volume .
↑ The first volume (1894), the second volume (1899).
↑ ¹ ² ³ ⁴ V. Dodonov. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 4. - 448 p. - ISBN 978-5-93295-470-6 .
↑ Poznyshev S.V. Basic principles of the science of criminal law. M., 1912. p. 7.
↑ ¹ ² ³ Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 5. - 448 p. - ISBN 978-5-93295-470-6 .
↑ Boronbekov S. Modern criminal law systems and schools: Training. allowance. Ryazan, 1994.
↑ Naumov A.V. Rapprochement of legal systems as a result of the development of criminal law of the 20th century. and its perspective in the XXI century. // State and law. 1998. № 6. S. 50-58; Vedernikova O.N. Modern criminal legal systems: types, models, characteristics // State and law. 2004. № 1. S. 68-76.
↑ Dodonov V.N. Comparative Criminal Law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 6. - 448 p. - ISBN 978-5-93295-470-6 .
For example: Mikhlin A. S. Death penalty. Yesterday Today Tomorrow. M., 1997; Responsibility for malfeasance in foreign countries. M .: Legal. lit., 1994; Parkhomenko S.V. Circumstances precluding the criminality of an act in domestic and in foreign criminal legislation: Textbook. Irkutsk, 2003.
↑ Ivanov A. M., Korchagin A. G. Comparative criminal law. Vladivostok, 2001; Malinovsky A. A. Comparative jurisprudence in the field of criminal law. M., 2002.
↑ Esakov, A. A. Fundamentals of Comparative Criminal Law: Monograph. M., 2007.

Literature

David R., Joffre-Spinosi K. The main legal systems of modern times. Per. with fr. V. A. Tumanov. M., Intern. relationship, 1996.
Dodonov V.N. Comparative criminal law. A common part. - M .: Yurlitinform, 2009. - 448 p. - 3000 copies - ISBN 978-5-93295-470-6 .
Malinovsky A. A. Comparative jurisprudence in the field of criminal law. M .: International Relations, 2002.
Malinovsky A. A. Comparative criminal law. Textbook. M., Yurlitinform, 2014.

[dod3-1] ¹ ² ³ ⁴ ⁵ ⁶ ⁷ Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 3. - 448 p. - ISBN 978-5-93295-470-6 .

[2] The first volume , the second volume , the third volume .

[3] The first volume (1894), the second volume (1899).

[dod4-4] ¹ ² ³ ⁴ V. Dodonov. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 4. - 448 p. - ISBN 978-5-93295-470-6 .

[5] Poznyshev S.V. Basic principles of the science of criminal law. M., 1912. p. 7.

[dod5-6] ¹ ² ³ Dodonov V.N. Comparative criminal law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 5. - 448 p. - ISBN 978-5-93295-470-6 .

[7] Boronbekov S. Modern criminal law systems and schools: Training. allowance. Ryazan, 1994.

[8] Naumov A.V. Rapprochement of legal systems as a result of the development of criminal law of the 20th century. and its perspective in the XXI century. // State and law. 1998. № 6. S. 50-58; Vedernikova O.N. Modern criminal legal systems: types, models, characteristics // State and law. 2004. № 1. S. 68-76.

[dod6-9] Dodonov V.N. Comparative Criminal Law. General part / under total. ed. S.P. Scherby. - M .: Yurlitinform, 2009. - p. 6. - 448 p. - ISBN 978-5-93295-470-6 .

[10] For example: Mikhlin A. S. Death penalty. Yesterday Today Tomorrow. M., 1997; Responsibility for malfeasance in foreign countries. M .: Legal. lit., 1994; Parkhomenko S.V. Circumstances precluding the criminality of an act in domestic and in foreign criminal legislation: Textbook. Irkutsk, 2003.

[11] Ivanov A. M., Korchagin A. G. Comparative criminal law. Vladivostok, 2001; Malinovsky A. A. Comparative jurisprudence in the field of criminal law. M., 2002.

[12] Esakov, A. A. Fundamentals of Comparative Criminal Law: Monograph. M., 2007.