The Characteristic of Social Danger of Offence in Scientific and Legislative Definitions in the Member Countries of the Commonwealth of Independent States and European Countries

Abstract

The purpose of the study is to substantiate that all types of offence and not only crimes have social danger. The achievement of this purpose should facilitate the normal functioning of the regime of legality and the legal order. Moreover, it will help the law enforcer not to bring to responsibility the offender whose actions only formally fall within the characteristics of corpus delicti and do not have social danger, which in its turn is consistant with the concept of a law-governed sate, fair law and fair justice. The obtained results will be useful for judges, prosecutors, students of law schools, legal practitioners. To achieve this purpose the following methods will be used: dialectical, comparative legal, formal legal. The use of the dialectical method allows to study the phenomenon in its complexity and interconnection with the practice and its development in social relations. The comparative legal method allows to go beyond the framework of the Russian Federation's legal system, to compare legislative definitions of offense in different countries and to identify their common features. The use of these methods has been tested by science and practice, which indicates their effective applicability to legal studies. To achieve this goal the article examines the social danger and its characteristics based on legislative definitions of an offence in different countries. It offers a comparative and legislative analysis of the concept of “offence” based on regulatory legal acts of different countries. The authors assert that all offences are not only crimes possess characteristics of social danger. A conclusion is made that a punishment which exceeds a criminal punishment cannot be imposed if an offence does not involve social danger. To a certain extent, we can judge about the nature and degree of social danger by the type of sanctions and the amount of adverse abridgment of rights that shall be imposed on the entity that has violated the legal norm. Social danger is a universal characteristic of an offence. Being a phenomenon of the real world, it does not depend on the legislation of a particular country nor on the type of its legal system. On the other hand, fixation of social danger in the law text depends on a legislator's will. Working out of a universal approach to social danger allows to avoid law enforcement mistakes, violations of human rights and freedoms, as well as facilitates integration of legal systems and the establishment of a law-governed state.

DOI: 10.5901/mjss.2015.v6n3p613