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Статьи автора Берчанский Кирилл Алексеевич
Юридические исследования, 2021-4
Berchanskiy K.A. - Failure to render medical aid to the patient (Article 124 of the Criminal Code of the Russian Federation) as an intended crime: a concurring opinion c. 24-48

DOI:
10.25136/2409-7136.2021.4.35080

Abstract: The subject of this research the judicial practice of Russian courts for the period from 2010 to 2020 on crimes qualified under the Article 124 of the Criminal Code of the Russian Federation. The subject also includes: relevant provisions of the Russian, Soviet and foreign legislation; doctrinal research dedicated to such types of crimes and iatrogenic crimes in general; as well as crimes with two elements of guilt. The goal is to indicated the discrepancies in the practice of Russian courts, clarify the contributing circumstances, and develop proposals for their elimination. The scientific novelty of this work is dictated by integrity of the used data and methods, previously undisclosed factors of law enforcement and doctrinal contradictions, as well as conclusions that are formulated in the Russian criminal law science for the first time. The first conclusion of this research consists in determination of essential contradictions in the practice of Russian courts with regards to application of the Article 124 of the Criminal Code of the Russian Federation “Failure to render medical aid to the patient”. The author established that the reason for these contradictions lies in disparity of the researchers in the question of the subjective side of the crime. The cause of this phenomenon is of complex nature, including the influence of the previously refuted theory of the “mixed” element of guilt. The main result of this research consists in substantiation possibility of establishing the two elements of guilt in the act qualified under the Article 124 of the Criminal Code of the Russian Federation, which however results from the flaws of the legal technique. As a solution to this problem, the author offers the projects of reforming the domestic criminal law based on the adapted provisions of the German criminal law.
SENTENTIA. European Journal of Humanities and Social Sciences, 2021-2
Berchanskiy K.A. - Causation in criminal medical malpractice: a conflict of forensics and criminal law in the Russian Federaion c. 1-23

DOI:
10.25136/1339-3057.2021.2.34426

Abstract: The subject of this study is the judicial practice of Russian courts on cases commeneced against medical personnel under the Part 2 of the Article 109 of the Criminal Code of the Russian Federation – infliction of death by negligence due to improper performance of professional duties. The subject of research also includes the legal framework on the procedure for conducting forensic medical examination in the Russian Federation, medical legislation, as well as the relevant provisions of the Criminal code of the Russian Federation. The scientific novelty of this research connsists in the comprehensive approach towards its implementation, including the analysis of the current judicial practice of Russian courts on medical malpractice. As a result of this analysis, the main problems that Russian courts face when assessing the causal relationship in iatrogenic crimes, primarily committed by omission, were identified. Through a detailed analysis of the laws and bylaws governing the procedure for conducting a forensic medical examination, the author has identified possible reasons for discrepancies in forensic practice, which, in turn, lead to discrepancies in jurisprudence. Also, using the historical method of interpretation, the author revealed the existence and causes of significant contradictions in the relevant legislation. Using a comparative-analytical method applied to the Russian criminal and forensic legislation, the main problems that hinder the effective and fair consideration of iatrogenic cases at the moment are identified, and ways to solve them are proposed depending on the state's priorities in criminal policy.
Юридические исследования, 2020-10
Berchanskiy K.A. - Causal link in iatrogenic crimes: problems of correlation of the categories of causality in forensic examination and Russian criminal law c. 27-51

DOI:
10.25136/2409-7136.2020.10.34288

Abstract: The subject of this research is the Russian case law of conducting legal proceedings against the representatives of medical sphere based on the constituent elements of crime established by the Part 2 of the Article 109 of the Criminal Code of the Russian Federation – infliction of death by negligence due to improper discharge of professional duties. The subject of this research also includes legal norms that regulate the procedure of forensic medical examination in the Russian Federation, norms of medical legislation, as well as corresponding provisions of the Criminal Code of the Russian Federation. The object of this research is the social relations emerging in the event of causing death due to improper provision of medical care, conduct of forensic medical examination, as well as consideration of such cases by the courts. The scientific novelty consists in comprehensive approach towards its implementation that would include the analysis of relevant practice of Russian courts on iatrogenic crimes. As a result of this research, the author outlines the key problems faced by the Russian courts in assessment of causal link in iatrogenic crimes, first and foremost committed by medical negligence. The detailed analysis of legal norms that regulate the procedure forensic medical examination allowed determining the possible reasons for discrepancies in forensic practice, which, in turn, lead to discrepancies in judicial practice. Based on the historical method of interpretation, the author detected the presence and origins of fundamental contradictions in the relevant legislation. The comparative-analytical method applied to the Russian criminal and forensic legislation allowed identifying the key issued that currently impede the efficient and just consideration of iatrogenic cases; the solution approach depending on priorities of the government in criminal law policy is proposed.
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