On the concept and classification of waiving in Russian law: inter-branch, criminal procedure and criminal law aspects

The phenomena that can be qualified as refusal occupy a significant place in the legal reality. However, the vastness of the legislative use of this term in all branches of law is countered by little scientific understanding of this legal phenomenon. This situation is characteristic of both the theory of law and branch sciences (private-law and public-law). The paper substantiates the multivalence of understanding of refusal within the framework of different legal theories, which predetermines the approach to definitions of refusal and its classification groups. It is proposed to define the signs of refusal regardless of the peculiarities of its branch specificity only within the framework of the relevant scientific theories. Such theories should include: the theory of legal relations (refusal as a legal possibility), the theory of legal facts (refusal as a fact of real reality, which is associated with the occurrence of legal consequences) and the theory of the mechanism of legal regulation (refusal as a legal and technical method). By examining waiver as a legal fact, as a legal possibility and as a legal and technical means, various aspects of waiver in criminal and criminal procedure are illustrated. Thus, using an intersectoral approach, the criticism of the point of view on the necessity of understanding the refusal exclusively as an action is expressed; the directions of possible adjustment of judicial practice on the issue of expediency of narrowing or expanding the scope of use of the victim's refusal of criminal prosecution on the basis of the theory of the mechanism of legal regulation are demonstrated. On the basis of the analysis of Russian and foreign doctrine the importance of considering the refusal as a legal possibility is illustrated, which is predetermined by its nature, inadmissibility of restriction, as well as the way of expression. The classifications of refusals proposed in the legal literature are analysed, their meaning and applicability to criminal and criminal procedural law are assessed. The author's classification of refusal according to the criterion of its orientation into internal (aimed at the legal possibilities of their owner and based on the formula "refusal of something") and external (aimed at other participants of relations and based on the formula "refusal of something to someone") is proposed. It is substantiated that the classification of refusal depending on its object, which can be subjective rights, interests, their realisation (implementation), obligations, as well as other objects, depending on the sectoral specifics, is essential from the point of view of the peculiarities of legal regulation.

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