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Общественная опасность и целесообразность в свете криминализации деяний с признаками административной преюдиции: анализ теории и правоприменения
Designed to normatively distinguish the criminal from the unapproachable, criminal law lawmaking has returned administrative prejudice to the current criminal law. The number of relevant norms in the Special part of the Criminal Law is increasing, which causes the scientific community to maintain attention to this institution. At the same time, the subject of discussion is both fundamental issues of the nature of norms with administrative prejudice, and particular problems of the legal and technical order. Without exaggeration, one of the most difficult questions should be recognized as the question of the grounds for criminalization of the relevant acts, since it puts the researcher in front of the need to explain the mechanism of occurrence of the property of public danger in an act similar to the one previously committed, but not possessing this property. By and large, we are talking about the presence of objectively existing properties that allow us to distinguish criminal behavior from unapproachable. The analysis of the sources allows us to identify two points of view that have developed among the supporters of administrative prejudice in the criminal law, in which the emergence of public danger is associated with a cumulative effect, which manifests itself either in the cumulative harm of massively widespread acts, or in the personal qualities of the guilty, prone to illegal behavior. Along with this, we propose the criminalization of certain acts with signs of administrative prejudice for reasons of expediency, in support of which we provide data on the law enforcement activities of the courts. Analysis of judicial practice and official statistics allows us to conclude that at the level of practical activity, the relationship between public danger and expediency as grounds for criminalization of the acts in question and the effectiveness of the norm is clearly manifested: the norms that appeared for reasons of expediency belong to the "dead". As for the assessment of the public danger of the acts in question, the courts do not always share the approach of the legislator, although in general there is actually a differentiation of administrative and criminal responsibility.