Necessary defense in crime prevention: issues of legislation and law enforcement improvement

¹ The Herzen State Pedagogical University of Russia, Saint Petersburg, Russia
² Prosecutor’s office of Veliky Novgorod, Veliky Novgorod, Russia
³ Academy of the Ministry of Internal Affairs of the Republic of Tajikistan, Faculty No. 2, Department of state legal disciplines, Tajikistan

^* Corresponding author: nikulenkoa@mail.ru

Abstract

The article is dedicated to necessary defense as a circumstance preventing a crime in the criminal law of the Russian Federation. Goal: to identify advantages and disadvantages of regulating necessary defense as a circumstance preventing a criminal action as envisaged by Article 37 of the Criminal Code of Russia providing liability for crimes committed through excessive self-defense. Methods: a study of respective norms using a systemic method, general scientific methods (structural-functional analysis, comparison, logical method, content analysis of court practice and mass media). Primary results: the research helped to identify advantages and disadvantages of the legal framework of necessary defense as well as significant qualification mistakes of judicial and investigative practice. Conclusions and novelty of the research: insufficient efficiency of the existing approach to problems of qualifying necessary defense and ways are proposed to solve these problems, namely, by correcting the Decree of the Russian Federation Plenum of Supreme Court dated September 27, 2012, No. 19 On Judicial Use of Legislation on Necessary Defense and Causing Harm in Arrest of Perpetrators. Due to ambiguousness and inconsistent practice of using criminal law norms concerning necessary defense, it is proposed to use, in the further reconstruction of respective norms of Article 37 of the Criminal Code of the Russian Federation, a list-based approach to legislative wording of these norms that allow the defender to inflict any harm to the offender. An easily understandable wording is created, which permits lawfully causing harm to social relations protected by criminal law.