The institution of insignificance of an act as a manifestation of the maxim summum jus, summa injuria in the national criminal law

Abstract

The article deals with issues related to the legal nature and ethical component of the institute of de minimis infractions provided for in Part 2 of Article 14 of the Criminal Code of the Russian Federation. Using Russian and foreign philosophical and legal concepts, the author substantiates the conclusion about the close connection between de minimis infractions and the Roman natural law maxim summum jus, summa injuria (“The rigor or height of law is the height of wrong”). It is noted that the essence of the institute of de minimis infractions consists in the refusal of the law-enforcer to implement criminal repression in order to achieve the requirements of justice of a particular case, contrary to the strict prescription of the norm provided by the article of the Special Part of the criminal law. On the basis of the analysis of practice of Russian courts in criminal cases, the article demonstrates that the mechanism established by part 2 of article 14 of the Criminal Code is applied in case of conflict between standards of morality and criminal-law prohibitions. In order to overcome this conflict, the law-enforcer analyses the act for the presence or absence in it of a sign of public danger, i.e. actually assesses the legitimacy of criminalization of an act in a particular case, in other words, the law-enforcer acts as if he were the legislator.

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