Davydova K.V., Razogreeva A.M. Analytics of criminalization: depth against surface (on the example of laws “on drunk driving”)

Abstract: The focal point of this article became a positivist-sociological and constructionist analysis of criminalization based on the example of “infamous” criminal law of the recent years “on drunk driving” (Federal Law of the Russian Federation of February 13, 2009 No. 20-FZ “on the Amendment to Article 264 of the Criminal Code of the Russian Federation” and Federal Law of December 31, 2014 No. 528-FZ “On Amendments to Separate Legislative Acts of the Russian Federation on the Question of Enhancing Criminal Responsibility for Violation of the Traffic Code”. The authors suggest using two analytical models of researching the selected analytical case – positivist-sociological and constructionist. The scientific novelty consists in simultaneous application of the two analytical models in the context of the legal material “on drunk driving”, which allows making the following conclusions: 1) There are different ways of analyzing the process of criminalization. The use of the traditional to Russian jurisprudence methodology of the theory of criminalization makes it possible to establish the presence or absence of the grounds for criminalization. The constructionist approach allows “capturing” certain realities of the legislative process. 2) With regards to the examined case both, the Soviet theory of criminalization and the alternative constructionist approach provide their strategic potential: the first detected the flaws of criminalization arguments, and the second – means of promotion of the legislative act

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