Problems of criminal law regulation of necessary defense as a type of criminal act

The aim of the article is to substantiate the fallacy of the modern approach to the legislative regulation of necessary defense. This approach is based on an incorrect interpretation of the content of necessary defense: from the position of a circumstance that precludes the criminality of an act characterizing its essence as a legitimate infliction of harm. The authors substantiate the necessity of disclosing the content of necessary defense as a socially useful act expressed in a forceful proportionate impact on the infringing person while protecting the legally protected interests of society or the state from a socially dangerous encroachment. The article is based on the analysis of previous and modern norms of the criminal legislation of the Russian state that govern actions in a state of necessary defense; explanations of the Plenum of the Supreme Court of the Russian Federation on the interpretation of the conditions for the legitimacy of necessary defense; the practice of applying Art. 37 of the Criminal Code of the Russian Federation; opinions of scientists on the essence and content of necessary defense, the main shortcomings of the legal regulation of necessary defense and the practice of its direct application. In the course of the study, the authors studied the content of the criminal law norm regulating the conditions for the legitimacy of necessary defense; the investigative and judicial practice of applying this norm, starting with its inclusion in the Criminal Code of the Russian Federation in 1996; the problems arising in such application. Further, the authors analyzed the opinion of experts in the field of criminal law on the subject of their attitude to the issues of legislative regulation and the practice of its application. Then, on the basis of the collected information, the authors analyzed the content of necessary defense as a criminal law category and proposed specific measures to improve the legislative regulation of necessary defense. According to the results of the study, the authors came to the following conclusions. Necessary defense should be interpreted as a socially useful act, expressed in the use of force against a person who commits a socially dangerous attack. Based on this, it is necessary to legislate the structure of the criminal law norm, which provides for necessary defense as a norm-rule of behavior, and not as a norm-guarantee. In the content of this rule, it is necessary to ensure an imbalance of the rights and obligations of the defender acting in a state of necessary defense. In the text of the criminal law, it is necessary to give a clear description of the structure of all types of criminally significant behavior. The characteristic of necessary defense as a criminal legal act makes it possible to reveal the completeness of criminal legal relations, to clarify the subject and method of criminal legal regulation, to qualify acts significant for criminal law, to identify and distinguish between varieties of socially dangerous and socially useful behavior, and thus provide ways to solve the main task of criminal law - definitions of criminality and non-criminality of human behavior.

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