Legal models of entrenchment of circumstances excluding criminality of conduct in the criminal law: the comparative-legal aspect

The current Criminal Code of the Russian Federation entrenches six circumstances excluding criminality of conduct. That particular list of circumstances in the national criminal law is predetermined by a number of objective factors, among which are the peculiarities of the legal system, national legal traditions, social factors and historical processes in the state. In general, the procedure for entrenchment of the circumstances excluding criminality of conduct in the national criminal law represents just one of the possible ways of such entrenchment in legal systems of different countries. Moreover, different countries and legal systems practice various approaches to the essence of this category, its content, structure and legal nature. The aforesaid distinctions are even more significant than those in such legal categories as crime, punishment and responsibility. That is why, anyhow, the legal model proper for the national criminal law is regard as of paramount importance for a comparative legal research. It is the types of entrenchment of the circumstances excluding criminality of conduct in each of the states that reflect differences in research methodology. There are legal systems which do not represent the circumstances excluding criminality of conduct as an independent legal category. Hence, they do not always entrench these circumstances in a separate chapter or as independent legal statuses. In this respect it is possible to distinguish at least three approaches to entrenchment of the circumstances excluding criminality of conduct. 1. The circumstances excluding criminality of conduct are entrenched in an independent chapter, separately from any other grounds excluding criminal responsibility as well as from other legal categories. This type of legal regulation is to be found primarily in the CIS and Baltic countries as well as in Georgia, San-Marino, Israel and some other states. The titles of the aforesaid chapter or paragraph may vary: «Circumstances excluding illegality of conduct» in the Criminal Code of Georgia (Chapter 8), «Circumstances excluding criminal responsibility» in the Criminal Code of Lithuania (Chapter 5), «Exculpatory circumstances» in the Criminal code of San-Marino (Chapter 4), etc. 2. The circumstances excluding criminality of conduct are entrenched in one chapter together with other circumstances excluding criminal responsibility or any other legal categories. Such type of entrenchment of circumstances excluding criminality of conduct is to be found in the Criminal Codes of France, Spain and China. The legislation of Australia also belongs to this group to some extent. In this case, the circumstances excluding criminality of conduct can be entrenched either together with other grounds for excluding criminal responsibility (as in the Criminal Codes of France and Spain) or without them (as in the Criminal Code of China). 3. The circumstances excluding criminality of conduct are entrenched separately in several paragraphs, clauses or chapter. This type of entrenchment implies that the circumstances excluding criminality of conduct are not placed together with other legal categories. This type of entrenchment is to be found in the Criminal Code of Thailand, in particular.

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