The institute of justified risk in Russian criminal law: genesis, theoretical and legal conflicts, and prospects for legislative modernization

Relevance . The study is necessitated by the need to clarify the criteria for the lawfulness of causing harm under conditions of justified risk amidst informational uncertainty. Particular attention is paid to subjective criteria for risk assessment, good-faith error, and the limits of permissible harm, taking into account the information available to the actor at the time the decision was made. It is argued that the current wording of Article 41 of the Criminal Code of the Russian Federation hinders the practical application of this provision. The author proposes a concept for the justified risk provision that focuses on the actor's perception of the situation at the time of decision-making and formulates proposals for legislative improvement. The purpose of the study is to conduct a comprehensive analysis of justified risk as a circumstance precluding the criminality of an act, to identify theoretical and legal conflicts, and to develop proposals for improving Article 41 of the Criminal Code of the Russian Federation by incorporating subjective risk assessment criteria. The objectives of the study are include examining the genesis of the concept of justified risk; identifying law enforcement challenges; investigating subjective assessment criteria, good-faith error, and limits of permissible harm; and developing an original concept of risk justification along with proposals for improving criminal legislation. Methodology . The study employs the dialectical method, analysis and synthesis, deduction and induction, system-structural and formal-logical methods, and systems analysis. Results . It was established that the current wording of Article 41 of the Criminal Code of the Russian Federation focuses primarily on a retrospective, objective assessment of the consequences and conditions under which harm was caused, thereby limiting its practical utility. It is proposed that the justification of risk be assessed based on the informational model of the situation within the actor's mind, taking into account the good faith and reasonableness of their actions. Conclusions . The study substantiates the necessity—when applying Article 41 of the Criminal Code of the Russian Federation, shifting the focus from an assessment of the consequences that ensued to an evaluation of the decision-making process under conditions of risk and based on the information available to the individual. A new version of the provision is proposed, taking into account the subjective perception of the situation and the adequacy of measures taken to prevent harm.