Some problems of implementation of circumstances, excluding the criminality of an act
Authors: Luvsan Bat-Ochir , Vandan-Ish Amarsanaa 
Published: December 2023

Introduction. The article focuses on the problems of implementation of circumstances excluding the criminality of an act. The authors make an attempt to establish some mistakes in the application of criminal and criminal procedure laws in the sphere of the institute of circumstances excluding the criminality of an act in Mongolia. The relevance and significance of the development of the institute of circumstances excluding criminality of an act both in the criminal law theory and in law enforcement activity is proved. Some problems of development of the institute of circumstances excluding criminality of an act are analysed, as well as some areas of their solution are determined. Other problems of application of the norm on encroachment committed for the purpose of detention and suppression are also investigated, as this norm and the institute of circumstances excluding criminality of acts are the most important issues of criminal law theory. Law enforcement officers are more likely to become subjects of an offence while performing their duties, as the failure to apply the norms relating to circumstances excluding the criminality of an act often leads to an unlawful result. In this regard, there is a need to strengthen the application of these norms in legal practice and carry out theoretical research in the field of criminal law.

Research methods: Using systematic and formal-legal methods, the norm on circumstances excluding the criminality of an act regulating discharge was investigated. By means of specific-sociological and statistical methods, data on crimes related to unlawful acts against the public authorities of Mongolia were obtained and analysed, as well as the results of surveys conducted among law enforcement officers. The results enable us to identify problems in this area.

Results. In the process of analysing the circumstances excluding the criminality of an act, the authors came to the following conclusions.

Cases of refraining from the use of special means and physical force by police officers who are afraid of being accused of abusing their power are quite common. As a result, a criminal has the opportunity to resist a police officer and to avoid being detained or to comply with lawful demands of a police officer.

Despite the legality of their actions, law enforcement officers often act with a lack of confidence because of the probability that they are likely to be punished for carrying out their duties. In practice, police officers are often blamed instead of being properly assessed for the legality of their actions: when they arrest or are resisted making it.

Coming into force article 4.2 of the Criminal Code of Mongolia, which protects law enforcement officers from such consequences, has become an important legal support of law enforcement officers in fulfillment their crime fighting duties.

Although the law in the new Criminal Procedure Code of Mongolia provides for “circumstances excluding the criminality of an act” as one of the grounds for the closure of a criminal case, the implementation of this ground is a matter of doubt, and the legal nature of its implementation should be improved in practice.