Сидоренко Э.Л. Уголовная ответственность в контексте правовых и философских теорий

Аннотация: The question of the nature of criminal liability in the Russian jurisprudence neither can be considered well studied nor fully posed. For most researchers the spectrum of scientific definitions of liability rules out the need for its thorough study and reduces the analysis to selection of the definition most suitable for resolution of tasks at hand. The shift of exploratory interests towards techno-legal and semantic analysis results for the liability concept in the loss of its ontological and axiological nature, blurs the distinction between liability and other mechanisms of criminal law regulation, fails to clarify the analysis of the processes of criminalization of deeds and differentiation of liability. The ontological guideline was selected as the starting point for the analysis in order to compensate for the deficit in scientific understanding of philosophical and legal aspects of criminal liability. It allowed to trace back the evolution of theory and practice of criminal policy and determine the following philosophical and legal approaches for defining criminal liability: philosophical and social school of the classical school considers criminal liability as an element of social responsibility. The objective-subjective dualism of liability elements is the basis of the classical theory. The objective element manifests itself in the demands the society makes to the person’s actions and the subjective one – in consciousness of guilt (positive liability concept); whereas the classical approach attributes criminal liability to the ethical experience of the guilty person, the positivistic school views it as a retribution and intimidation tool. In the positivistic interpretation criminal liability is a legal consequence of the crime; limitations to the legal status of the person; limitations of personal and property nature etc. Not to deny justice to the mentioned evaluations, it is impossible to ignore that this approach deprives criminal liability of the dynamic nature, fails to define its functional properties and its place in the system of criminal law regulation; detailed elaboration of the normative criteria of criminal liability resulted in formation of the new techno-legal concept within the positivistic school. Supporters of the school single out material and procedural attributes of liability and identify it with application of sanctions and privations to the guilty person; propositions of the Marburg neoclassical school constituted the basis of the functional approach. Criminal liability is viewed in the light of the universal characteristics and interpreted as a legal tool for prevention and resolution of conflicts, specific method or instrument of pressure on the person guilty of committing a premeditated crime etc. Functional evaluation of liability allows to define its dynamic nature but does not display the mechanism of legal pressure; evolution of philosophical and legal concepts resulted in formation of eclectic scientific school. It consists of the following areas: 1) identification of criminal liability and criminal law relations; 2) limitation of liability by the nature of legal relations; 3) its identification with legal duty; 4) analysis of liability as a State power. The concept of criminal liability as an element of regulatory and protective criminal law relations is at embryonic stage of development. In regulatory relations the concept arises from the moment the criminal law is enacted and constitutes a way to enforce criminal law prohibitions, and in protective relations it constitutes the nature of relations between the State and the offender.

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Abstract: The question of the nature of criminal liability in the Russian jurisprudence neither can be considered well studied nor fully posed. For most researchers the spectrum of scientific definitions of liability rules out the need for its thorough study and reduces the analysis to selection of the definition most suitable for resolution of tasks at hand. The shift of exploratory interests towards techno-legal and semantic analysis results for the liability concept in the loss of its ontological and axiological nature, blurs the distinction between liability and other mechanisms of criminal law regulation, fails to clarify the analysis of the processes of criminalization of deeds and differentiation of liability. The ontological guideline was selected as the starting point for the analysis in order to compensate for the deficit in scientific understanding of philosophical and legal aspects of criminal liability. It allowed to trace back the evolution of theory and practice of criminal policy and determine the following philosophical and legal approaches for defining criminal liability: philosophical and social school of the classical school considers criminal liability as an element of social responsibility. The objective-subjective dualism of liability elements is the basis of the classical theory. The objective element manifests itself in the demands the society makes to the person’s actions and the subjective one – in consciousness of guilt (positive liability concept); whereas the classical approach attributes criminal liability to the ethical experience of the guilty person, the positivistic school views it as a retribution and intimidation tool. In the positivistic interpretation criminal liability is a legal consequence of the crime; limitations to the legal status of the person; limitations of personal and property nature etc. Not to deny justice to the mentioned evaluations, it is impossible to ignore that this approach deprives criminal liability of the dynamic nature, fails to define its functional properties and its place in the system of criminal law regulation; detailed elaboration of the normative criteria of criminal liability resulted in formation of the new techno-legal concept within the positivistic school. Supporters of the school single out material and procedural attributes of liability and identify it with application of sanctions and privations to the guilty person; propositions of the Marburg neoclassical school constituted the basis of the functional approach. Criminal liability is viewed in the light of the universal characteristics and interpreted as a legal tool for prevention and resolution of conflicts, specific method or instrument of pressure on the person guilty of committing a premeditated crime etc. Functional evaluation of liability allows to define its dynamic nature but does not display the mechanism of legal pressure; evolution of philosophical and legal concepts resulted in formation of eclectic scientific school. It consists of the following areas: 1) identification of criminal liability and criminal law relations; 2) limitation of liability by the nature of legal relations; 3) its identification with legal duty; 4) analysis of liability as a State power. The concept of criminal liability as an element of regulatory and protective criminal law relations is at embryonic stage of development. In regulatory relations the concept arises from the moment the criminal law is enacted and constitutes a way to enforce criminal law prohibitions, and in protective relations it constitutes the nature of relations between the State and the offender.

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