Sergei STEPANOV, Director of the Institute of Private Law (The Russian Federation) Doctor of Legal Sciences, Professor

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1 Sergei STEPANOV, Director of the Institute of Private Law (The Russian Federation) Doctor of Legal Sciences, Professor Sergei Stepanov, 2014 «GOOD» CIVIL RIGHTS AND THE «EVIL» CRIMINAL LAW (STATEMENT OF THE PROBLEM) 169 UDC 340 The article examines inter-branch relationships between the civil law and the criminal law at the doctrinal, legislative and law-enforcement levels. The classifi cation of confl icts and collisions over application of the civil law and the criminal law on the basis of their arising is being held. Key words: civil law; criminal law; inter-branch relations; legal system; confl icts and collisions over application of law. he history of law is not only the history of the civil law. And it s not just the Thistory of the criminal law. The history of law is also the one of interaction and stand-off, terpenetration and mutual non-acceptance between the civil law and the criminal law *.1 The Russian jurisprudence in its special, unique development mostly leaned toward coercive, fiscal filling; with passages from relatively short periods of declared and partly exercised freedom and personal inviolability, inviolability of personal property (Alexander the 1st, NEP [New Economics Politics policy carried out by the Soviet Union in the 1920s of the 20th century note by translator], post-stalinist «thaw», rather instable period of destatization and privatization in the 1990s of the last century etc.) to tough measures of administrative and criminal coercion. The problem * The ancient sources, which have come to us, moreover, the logic of the law as a social phenomenon, amazingly simple and at the same time amazingly complicated, impossible to cognize fully, lead to the only conclusion: the law in its actual state, meaning and variety, arises from the initial, ancient civil law. «It is well-known, for instance, that in the ancient epoch, a weak and just incipient state authority did not interfere into the area which represents nowadays the criminal law: a revenge for the offence caused, a vengeance or a settlement, including a fine, were a matter between the parties concerned» (I.A. Pokrovskii). In the course of a state development, a public interest began to penetrate rapidly into the area of those interpersonal relations, which have intruded (or could have intruded) on the «authorities territory», on that public order (in the broadest sense), which was meant for a state organization by the authorities.

2 of correlation between the civil freedoms of a particular person and public interests of all or of a majority, early or later was solved in favor of the latter ones. However, each time the meaning and the scope of rights of a particular person, a particular citizen were broadened, though to a little degree. The true and rather complicated stage of establishing the general legal consciousness is distinctly characterized by two, seemingly, incompatible and differently directed, but surprisingly equal, profound and fundamental directions: increase of significance and legal protection of rights of a particular citizen, on one hand, and intensification of the control by authorities, state, and its ultimate manifestation criminal prosecution, on the other hand. Nowadays the search for harmonic relationships between the civil law and the criminal law rests not only within the jurisprudence. Solving of this task will in many ways determine the future of the country as well as the destiny of the law in its broad sense [1]. More than 15 years have passed from the date of the Civil Code of the Russian Federation coming into effect. The achievement of the key primary economic goal appearance of private property as a material basis for the further development of a society in whole and each person in particular is ensured for the most part and in the first place by the Civil code of the Russian Federation, which is justly called an economic constitution. 15 years for the only codified act, which embodies to a large extent the private law idea, is a rather insignificant period of time. However, even within this period, the issues, which require, among others, not only a legislative solution *,2but also a profound scientific analysis, elaboration of doctrinal recommendations for improvement of the code and of the private legislation entirely, became evident. Apparent, and seemingly, having provisional symptoms of growth illnesses and legislative disharmony, non-cohesiveness, and, alas, sharpened contradictions between private and public law, within their careful and profound research, uncover crucial systematic structural inconsistency both within the whole jurisprudence and the civil law in particular. Private law permissions, threading the civil laws, having not truly revealed its indeed indispensable features of a supreme regulator of the key property and non-property relationships, have noticeably (from the beginning of the century) ceded their positions with regard to regulation of those areas, which had been traditionally referred to exclusively civil ones: limits of running business, freedom of contract, acquisition and termination of property right, validity and non-validity of transaction, etc. The Civil code, in its essence, implies a specific procedure of its own of protection of subjective rights, established by it, and if this is not sufficient (or if necessary) a possibility of engaging pertinent tools of administrative and criminal law and procedure in order to protect civil standards. And if public norms of substantive law and procedure, meant also to protect private law achievements, may be aimed (despite of motives and circumstances) not at the support of the civil law, but in fact, against this law one can t but state, that the reason of this lies not only and not so much in the «aggressiveness» of administrative and criminal norms of substantive and procedure law, as in «unarmed * The Concept of the Civil Legislation Development (published in 2009 by the publishing house «Statut») elaborated by the Private Law Research Centre under the Russian Federation President s Office deserves high praise. However, proposed amendments and supplements to the Civil Code, which are really necessary, unfortunately do not develop enough its key idea: establishment of private law, based on private property and on self-motivated freedom of a person. 170

3 state» of the private law becoming apparent. The fact of it being unarmed is to some extent natural, in comparison to public law tough and lightning fast reactions. The way of applying (or not applying) the civil legislation norms by court and state authorities in the last decade is disturbing. And it is particularly disturbing when ahead of private law, the administrative (anti-trust, tax, etc.) law or criminal law norms are applied to an economic dispute. It s not only the fact by itself of «complex» judicial impact on, as a rule, a conflict situation (this is normal and even necessary) that makes danger, but a change of directions of this impact. The property claims of a creditor (a victim, a public person) are frequently referred not to the objects of the property right of the debtor, but straight to his person *!3One of the most significant achievements of the private law within last two hundred fifty years (restriction of property claims of a creditor solely to the property of the debtor) is being simply sacrificed to, for sure, highly effective measure addressing claims to the person itself **.4Domestic doctrine, legislation and high legal education traditionally stick to the principle of division the whole dogmatic massive into branches of law (constitutional, civil, criminal, administrative and so forth) ***.5The general number of the most valuable and uncontestable branches of the Russian law nowadays reaches already a few dozens. While performing a priceless role of the most important structural and methodological criteria, the branch classification is inevitably and constantly accompanied by «border conflicts», which would sometimes crush, as it may seem, a universal and comprehensive structure of branches of law. The «borders» of branches (judicial regime, subject, method), hard won by the judicial science, fail to take the press of the cluster of public conflicts, «seasoned» by a court-procedure fracture, economic opportunism and socialphysiological tension, and concede to voluntary discretion of a legal professional, who seeks the shortest judicial ways to achieve his judicial goal. Also a legal professional, armed with judicial means of a prompt character an administrative act, a criminal procedure ruling and so forth, takes over the one, armed with judicial means of a longterm universal character (lawsuits). This situation is aggravated by the fact, that branches of law (and, thus, branch legal regimes) are characterized by certain closeness, a sort of sovereignty and inapplicability of legal norms to relationships, which are not regulated by the given branch, lying beyond its subject [2]. The civil law significantly secured (and secures now) private interests and economic basis of the society, it has been developing alongside with industry and trade, it has been elaborating comprehensive judicial constructions, accepted further by the authorities, and transferred by the latter into legislative forms. There was no and, probably, there will never be a distinct «border» between the civil and criminal law; one and the same relationship may be the object of both criminal prosecution and of * Initiating a criminal case, choosing a pre-trial restraint on a person s liberty, ban on applying for an international passport, restriction of possibility of temporary leaving Russia and so forth. ** However there is a grain of optimism in this, in whole, tragic situation; optimism which is associated with a civil structure of the property right and its protection. Referring claims to a person, not to a property speaks for unconditional legal vigor of the property right. *** Branches of law are the largest, central chains of the law structure. They embrace the basic, fundamentally specific types of public relations, which, according to their deep economic, social and political content, require a separate, judicial unique regulation / Алексеев С.С. 2-е изд., перераб. и доп. М.: ТК «Велби»; изд-во «Проспект», 2008). 171

4 civil lawsuit6*. Meanwhile, one can t but agree with the stance of V.F. Yakovlev, that the criminal law protects the relationships, which are regulated by other branches of law, including the civil law, in particular property relations, in their static. However this circumstance doesn t mean coincidence of subjects of the mentioned branches, because the subject of the branch is defined by a range of relations, it regulates, and not the ones it protects. With regard to organization, the criminal law regulates the relations, arising in connection with violation of ban, and represent power relations on imposing a criminal liability. Thus, the property relations are equally included in the areas of both civil and criminal legislature. And within the criminal law, this regulation is special, different in its core from the private law one, but necessary and in demand. Moreover, it is demanded by the civil law not only in an essential conceptual sense, but also in specific judicial situations (for instance, a review in court of a civil lawsuit regarding damage compensation within a criminal proceeding). Besides, the civil law elaborates judicial constructions, which are used in the criminal law. The civil law notions such as a «transaction», «property», «business activity» and others contain the criminal law. In contrast, the civil legislation applies notions and terms of the public one, including also criminal law: fine, forfeiture **.7 A harmonic combination of civil, administrative and criminal law provides the fundamental basis for the whole legal system and statehood. The developed and stable foreign jurisprudences (first of all, the ones of Western Europe) have reached such a combination to a certain degree. The Russian legal system in roughly changed political, economic and social conditions just starts moving towards such a necessary scientific, legislative and law-enforcement level, which would ensure a clear and predictable judicial qualification, a fair and unambiguous impact of legal norms on persons relationships. In opposite, a modern period of evolution of the national law is rushing and unpredictable to some extent. And this deprives the law in whole of one of its key, appropriate only to it, particularities its exclusive preciseness and strict formal definiteness as at the legislative level, so at the level of applying the law. The basic substantive branches are not sufficiently coordinated and mostly keep developing independently each other, which cannot but result in undesirable predominance of one or a few of such branches. Besides, the general and not glowing perspective is complemented with the court proceeding, making appearance of being incontestable, having risen at the height never seen before, armed with procedural (roughly public) norms, which are mostly oriented not at the rule * In particular, the defense of honor and dignity, of life and health of a citizen can be a matter of both criminal and civil proceeding. ** It should be mentioned, that while determining a sentence for an offence, the criminal legislation and a court practice in criminal cases frequently give priority to private interests over public. «In the first place the damage caused to a legal owner is compensated. Meanwhile, a levy may be imposed upon the property of the defendant, other than that gained by a criminal activity. In the case if there is no another property, the legal owner is compensated the cost of the damage caused from the funds, assets and other property, gained in a result of criminal activity, and only after that the rest of the property is passed to the state» (E.P. Kudryavtseva). «While solving a question on whether there are elements of a crime in actions of a person, provided by Articles 146,147 and 180 of the Criminal Code of the Russian Federation, trials should take into account the provisions of the civil legislation reading that use of the results of intellectual work, and means of individualization of a legal person equaled to them, which are an object of exclusive rights (intellectual property), may be exercised by a third party only upon a copyright owner consent (Постановление Пленума Верховного Суда Российской Федерации от 26 апреля 2007 года 14 «О практике рассмотрения судами уголовных дел о нарушении авторских, смежных, изобретательских и патентных прав, а также о незаконном использовании товарного знака»). 172

5 and inviolability of law and rights, but at a court discretion. Improving of inter-branch relationships becomes one of the most important tasks of the development of law An improvement of the inter-branch interaction in economics regulation, (where this interaction is most complicated) is getting specifically crucial [3, 237]. The doctrinal searches of ways of elimination of a negative impact of inter-branch «border mismatches» have been undertaken in the russian judicial science [4 8]; and one would like to hope they will be undertaken also further on. In particular, it is worth to mention an approach, based on the above-branch differentiation of mechanisms of the three known types of legal regulation: permission, order and prohibition. Used in various branches of law, these types ultimately lead a legal professional to respective procedures: a civil, an administrative, a criminal proceeding (a court defense of a subjective civil law, bringing to administrative liability, criminal prosecution, and so forth) [9]. We believe that in perspective this direction of the judicial law will manage to elaborate recommendations, «softening» the inter-branch conflicts. A very brief and a shallow enough review of separate theoretic problems within inter-branch relationships in modern Russian law, still allows to claim, that the most demonstrative and crucial contradictions and other «trouble spots» of relations like this are concentrated in interaction (or in its absence) between the civil and the criminal law. Besides, a degree and extent of this interaction is different respectively on theoretic, legislative and law-enforcement levels. Doctrine. A correlation between the civil and the criminal law in judicial science is almost smoothly integrated into the general theoretic structure of the national law, complying with a universal classification of branches upon a subject or a legal regime (including a method). These most bright and unquestioning «representatives» of public and private law, as no others, are armed under a general rule with diametrically opposite mechanisms of regulation (permissions prohibitions) and absolutely different procedure of state enforcement within offences. Thus, a doctrinal idea builds a reasonable, distinct «border line», which has a long-term perspective, which is stable and difficult to overpass, between the civil and criminal law. And this circumstance, whatever surprising it may be, starts playing not a positively organizing role, but becomes one of the crucial prerequisites of appearance of signs of alienation, of different directions of these branches. Legislature. In the area of law-making a certain «blur» of the border between the civil law and the criminal law in not only appearing, but is getting alarming. Despite of a legislative necessity to unify initiatives into one stream *,8the civil and the criminal law-making have not reached a needed harmony (and, probably, will not reach it in the near future). And the main reasons for legislative dissonances are two groups of factors: a) mentioned above, the division into branches, which has deeply penetrated into the core a national judicial idea ** ; 9 * At the present day, one committee, unifying the civil and criminal legislation operates at the State Duma of the Russian Federation. ** A branch principle is not only the crucial one in legislature. It threads legal education, science, one way or another it shapes legal thinking in all without exception areas of theoretic or practical jurisprudence. Meanwhile, another approach (studying, scientific, law-making) a situational one, proper in first place to legal families, historically based the judicial precedent principles, is also characterized by greater or equal risks. 173

6 b) lack of the law-maker s attention to an «above-branch» division of law into private and public *.10 Applying of law. In the given part of the judicial mechanism all invisible (but anticipated) in a theory and clearly determined in legislation «joys and sorrows» of interaction between the civil and the criminal law get not only an apparent and bright shape, but are also complemented with a special «reflecting» feature, mutually (but not to the same extent and not in equal consequences) projecting «backwards» into its chamber, negative, destroying moments apart from positive, mutually complementing and enriching ones. If one and the same life situation, the same complex of social relations («one has loaned money and hasn t gave back», «one received the goods and didn t pay for it») simultaneously become the object of regulation both by the civil and the criminal law, then it s necessary (necessary!) to search for root causes in a doctrine and legislative gaps. All conflicts and collisions over applying the civil and the criminal law can be divided into three groups over the grounds of their arising: a) contradictions, taking origin in profound, doctrinal and legislative areas; b) objective mistakes of judicial qualification of a law professional; c) cases of subjective, voluntary (it can be said lawless) application of mechanisms and tools of the criminal law and the criminal procedure «regulation» while solving economic disputes **.11 The two last groups are mostly based on factors of theoretic and legislative character, which in one case admit such a possibility from a «bona fide» legal professional, and in the other allow a bad-faith legal professional to use law for non-legal purposes. Thus, principles determined in a legal theory and limits of their interaction («the civil law is functionally related to the criminal law, which is expressed in a fact, that the criminal law protects property relations, regulated by the civil law, by judicial means appropriate to the first one» [3, 326]) stay just a theory in legislation, and particularly, in legal practice. In modern realities, especially in the area of economic relations, and blatantly apparent in property relations, which make the core of each community and every individual at least external (frequently the most painful) manifestations of these relations (interaction, standoff, conflict) occur frequently unfortunately ***.12 * The distinction between the private and public law goes beyond fundamental features (often being studied by theoreticians): equality inequality, coordination subordination, interest of a person interest of many persons. Deep grounds for such division thread all judicial institutes. In particular, it is the principle and the character of legal liability. In the private law, a key actor of liability is a victim, in public law it is an offender. The private law does not accept a «pity» principle of priority defense of a «poor and offended» victim, moreover, the private law reacts more toughly at imprudence, that at bad faith of the parties. Private property, a basis of the private law, is not conceived without a self-motivated, active, strong owner, who is to protect his property. The private law is not meant for official authorities neither as an instrument of rule, no as means of punishment of «disobedient». ** The President of Russia D.A. Medvedev has mentioned such case in public: «I would like also to mention, that there is a range of problems in this system. I hope, something, that I suggest, will allow at least in-part to block the possibility for corrupt staff of law-enforcement agencies of «putting in prison» for raider purposes, as we all know, there are plenty of examples. At first the person is incarcerated at the prompting of a business rival, and then is released for money this is what happens. If you have examples like this, you can tell. If you want you will tell. But it s time to stop this outrage. In the coming days I shall submit a bill to State Duma». *** The last decades give many examples of illegal bankruptcies, raider attacks, property seizure by other illegal means. Economic disputes in courts are reviewed alongside with investigations of criminal cases, initiated in connection with circumstances, arising of transactions, and so forth. 174

7 If to try to summarize everything stated above in order to make a brief statement (but not to simplify it) it is a controversy between the private law and the public law in its most concentrated form: freedom of running business and freedom of contract against public order (in its broadest sense), private and inviolable property against ideas of absolute and economic equality, fostered over generations. It is not the task of the present publication to determine concrete further scientific and legislative steps to solve the problems described. The only admission by itself of the circumstance, that the private law and the civil legislation, which reflects it, have not still run out of all the possibilities (and no other branch of law has such possibilities at its disposal) to elaborate the dogmatic and doctrinal approaches, which will not only keep the achievements gained within centuries, but will unify the whole legal system to defend and develop these gains. Differentiation between a voidable transaction and a fraud, clear and unambiguous, is necessary right now. But this is the subject of another, further research. REFERENCE LIST: Sergei Stepanov, Алексеев С.С. Тайна и сила права / С.С. Алексеев. М.: Норма, с. 2. Мицкевич А.В. Соотношение системы советского права с системой советского законодательства / А.В. Мицкевич. М., Яковлев В.Ф. Гражданско-правовой метод регулирования общественных отношений / В.Ф. Яковлев. М.: Статут, с. 4. Алексеев С.С. Структура советского права / С.С. Алексеев. М., с. 5. Керимов Д.А. Методология права (предмет, функции, проблемы философии права) / Д.А. Керимов. М., с. 6. Ровный В.В. Проблемы единства российского частного права / В.В. Ровный. Томск, с. 7. Братусь С.Н. Предмет и система советского гражданского права / С.Н. Братусь. М., с. 8. Пикуров Н.И. Теоретические проблемы межотраслевых связей уголовного права / Н.И. Пикуров. Волгоград, с. 9. Сорокин В.Д. Административно-процессуальное право / В.Д. Сорокин. М., с. Stepanov S. Kind Civil Law and Severe Criminal Law (a problem statement) / S. Stepanov // Scientific Journal of National Academy of Prosecution of Ukraine P [Electronic resource]. Available at: 175

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