Vol 5, No 2 (2019)

Full Issue

Theory of law and state

CATEGORY «LEGAL PROCESS» AS A DEVELOPMENT OF THE CONCEPT «LEGAL RELATIONSHIP» IN THE CONTEXT OF RECURSIVE PARADIGM IN THE LEGAL REGULATION

Spirin M.Y., Kuznechenkov A.A.

Abstract

In this article authors consider the possibility of developing the concept of «legal relationship» in the context of the recursive paradigm in the legal regulation, which was the result of an attempt to synthesize the general theory of law and the theory of formal systems. Synthesis of theories was carried out on the basis of the analysis of the sphere of legal regulation using the concept of «recursion». The result of this study was the category of «legal process» which is a consequence of the development of «relationship» concept in the modern general theory of law. It is suggested that use of the category of «legal process» will allow more fully and accurately describe the modern procedure of legal regulation. A number of concepts have been defined, the application of which within the framework of the «legal process» will contribute to the solution of tasks aimed at a qualitative increase in the volume and in the degree of accuracy of the legal regulation. The authors present for discussion the questions, the solution of which will contribute to the creation of theoretical basis for «immersion» of modern law in the virtual space.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):7-14
pages 7-14 views

LEGISLATION IN THE FIELD OF PERSONAL DATA AS AN INSTITUTION OF INFORMATION LEGISLATION

Ruzanova V.D.

Abstract

The article, on the basis of the theory of doubling the structure of law, considers the problems of building a system of legislation in the field of personal data through the prism of its membership in the institutions of information legislation. The author makes an attempt to establish the correlation of normative legal acts within this institution and to determine their points of contact with the acts of sectoral legislation. The author concludes that the specified institution is rapidly growing and acquires the features of multi-structure due to the quantitative and qualitative dynamics of the subject of legal regulation. It is noted that the close connection of the named type of information with an individual predetermines the unity of fundamental approaches to the legal regulation of relations arising here. At the same time, the «ramification» of the personal data itself and their spheres of application is the basis for a significant internal differentiation of this institution, manifested in the presence of sub-institutions in its composition. As an example, the subinstitute of biometric personal data is analyzed, the structure of which as one of its elements includes a set of regulatory legal acts establishing the mode of genomic information.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):15-22
pages 15-22 views

REQUIREMENTS FOR CONSENT TO CONDUCT RESEARCH, TREATMENT OR DIAGNOSTICS IN THE AREA OF HUMAN GENOME

Povarov Y.S.

Abstract

The article is about the attribute characteristics of consent to conduct research (treatment, diagnosis) in the field of the human genome, enshrined in international and domestic legal acts, while revealing the autonomy and interrelation of relevant features. Considering that the collection of genetic information can be carried out in order to provide medical care and be accompanied by medical intervention, increased attention is paid to legal indications of consent to such an intervention (information of the person concerned, voluntariness and preliminary nature of consent, its clear expression). The author, among other things, emphasizes the need for legislative regulation (in the format of a multi-factor approach) of the temporal aspect of conciliation procedure; indicates the relevance of applying the rule of giving medical clarifications in the situation of a request for termination of medical intervention; justifies the expediency of considering the sign of an obvious expression of consent, first of all, from the position of the form of expression of consent and in the content-organizational plan.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):23-28
pages 23-28 views

SUBJECT COMPOSITION OF RELATIONS ARISING WHEN USING GENOME INFORMATION

Kryukova E.S.

Abstract

The article deals with the problems of determining the subject composition of legal relations arising from genomic information. It is emphasized that the basic act in this area is the law on personal data, containing general provisions on the subject composition, its legal status and operations in which it is involved. The author concludes that in the absence of special regulation it will be necessary to operate with the general terminology and proceed from the status of participants in relations arising about genomic information enshrined in the law on personal data. The indirect use of genomic information is analyzed, in particular, within the framework of the information base functioning. The author raises the question of the need to give genomic information a special status within the framework of the law on personal data, which would allow to introduce a uniform terminology in relation to the subjects of relations arising from its use.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):29-34
pages 29-34 views

TERMINATION / RESTRICTION OF WATER DISPOSAL (“PLUGS”) AND PROTECTION OF THE RIGHTS OF CITIZENS IN HOUSING RELATIONS

Dolinskaya V.V., Dolinskaya L.M.

Abstract

In the article, based on the analysis of regulatory legal acts of various levels and law enforcement practice, there are revealed defects in the law and violations of the rights of citizens during termination / restriction of wastewater disposal. It is noted that legal acts provide for both regulatory and restrictive conditions for the termination / restriction of the provision of services in this area, which are procedurally different in terms of sources of law. It is emphasized that the procedure for the implementation of regulatory condition, consisting in the preliminary notification of interested persons, is regulated differently in sources at various levels. The authors give and analyze concrete examples of the actual consequences of the installation of «plugs», and state that even in court decisions that are not in the interests of citizens, it is noted that the installation of «plugs» should not lead to damage to the defaulter’s personal property. The authors argue that in most cases there is no formal basis for stopping / limiting wastewater, since the law provides for a drainage contract, and not a contractual relationship. It is concluded that the installation of plugs in the drainage system of apartment buildings is a violation of sanitary legislation and creates the threat of the emergence and spread of infectious diseases and mass non-communicable diseases (poisoning) and formulated the basic possible requirements for the protection of violated rights.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):35-43
pages 35-43 views

CRIMINAL LIABILITY FOR DISCRIMINATORY CRIMES

Bobrova N.A.

Abstract

We consider the composition of discriminatory crimes, primarily the composition of Article 136 of the Criminal Code of the Russian Federation. The shortcomings of this article, the reasons for its non-use are analyzed. The problem of differentiation of criminal and other types of responsibility for discriminatory offenses, as well as the problem of differentiation of discriminatory and lawful restriction of constitutional rights and freedoms of citizens is touched upon. The conclusion is made about the need to improve antidiscrimination legislation, the practice of its implementation, as well as the need for an anti-discrimination ideology and anti-discrimination education at the state level.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):44-49
pages 44-49 views

PROBLEMS OF LEGISLATIVE REGULATION AND PRACTICE OF SPECIAL MILITARY CRIMINAL PUNISHMENTS’ APPLICATION

Zakomoldin R.V.

Abstract

The article discusses the problems of legislative regulation and the practice of using special military types of criminal punishment under the current military criminal legislation of the Russian Federation. Close attention is paid to such types of military criminal penalties as deprivation of military ranks, restrictions on military service, detention in a disciplinary military unit and arrest with detention in the guardhouse. Proposals for amendments and additions to the existing military criminal legislation as well as to the practice of its application have been formulated. The initiative to exclude from the Criminal Code of the Russian Federation of special military types of criminal punishment has been criticized.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):50-56
pages 50-56 views

LEGAL SUPPORT OF IMPLEMENTATION OF DOCUMENTS OF STRATEGIC PLANNING OF SOCIO-ECONOMIC DEVELOPMENT OF THE SAMARA REGION IN THE CONDITIONS OF DIGITAL ECONOMY

Bortnikov S.P., Ievleva M.M., Shigin M.D.

Abstract

Тhe article examines the issues of legal support for the implementation of strategic planning documents for the socio-economic development of the Samara Region in the digital economy, defines the ratio of the National Program «Digital Economy» and its regional component, providing for federal and regional projects of the digital economy, as well as the ratio of initiative and government programs of the Samara Region. Conclusions about the imperfection of strategic planning documents as regulators in the studied area of relations are made. The national program «Digital Economy» provides for the elimination of «digital inequality» of different regions, but does not solve the question of «inequality of economic sectors»: 1) how will technologically backward sectors of the economy develop, including in the Samara Region, can economic entities the digitalization process, whether it will entail even greater backwardness and lack of competitiveness of entire industries, given that the programs are designed to support large organizations that create infrastructure values; 2) what will happen with the employment of the population in the «backward» sectors of the economy in municipalities that are still far from the digitalization process; 3) how much will the role of transnational corporations, which have sufficient resources to «absorb» the achievements of the digital economy, in the functioning of regional and municipal economies, be enhanced.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):57-63
pages 57-63 views

DIGITALIZATION AS A WAY OF OPTIMIZING THE MECHANISM OF PROTECTION OF CIVIL RIGHTS IN THE FIELD OF CIVIL JURISDICTION

Gritsay O.V., Gubina E.N.

Abstract

The article deals with the issues of ensuring the protection of rights and legally protected interests of legal entities in the field of civil jurisdiction, taking into account the modern trend of digitalization of the civil process. The Federal Targeted Program «Development of the Russian Judicial System for 2013–2020» and a number of changes adopted in the Code of Civil Procedure of the Russian Federation, the Federal Law «On Enforcement Proceedings» and other acts are designed to ensure the transition to compulsory execution in electronic form. In this regard, there is a discussion in the scientific community about the need and feasibility of introducing e-justice in Russia and the use of artificial intelligence technologies in resolving cases. In foreign practice, certain elements of e-justice are already used. The study analyzed the arguments of the participants in the discussion. In general, the judicial community and practitioners are wary of possible innovations, especially the idea of artificial intelligence technologies. A new result of the research is the proposal on the algorithmization of clerical court proceedings as a digital service and subsequent algorithmization of some elements of the enforcement proceedings.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):64-68
pages 64-68 views

FROM THE LEGITIMATE INTEREST OF THE TAXPAYER TO THE SUBJECTIVE RIGHT: GENESIS AND EVOLUTION

Yadrikhinskiy S.A.

Abstract

The subject of the study is a little-studied in the theory of tax law issue related to the evolution of the taxpayer's permits. The study analyzes the process of transformation of legitimate interest into the subjective right of the taxpayer. On the basis of a retrospective analysis of tax legislation systematized knowledge of the dialectic of this transformation. The article considers the actual basis of the transition of the taxpayer's legitimate interest to the prompt return of value added tax (VAT) to the subjective right to apply the application procedure for VAT refund. The author substantiates the idea that the main objective reason for the transformation is the complexity of social and economic relations. It is concluded that the consequence of formalization of legitimate interest in subjective law is the acquisition of a more stable legal status and the transition to a qualitatively new, more secure level of permission. As a feature of the newly transformed law, its normative saturation is noted both in the content and in the details of its implementation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):69-74
pages 69-74 views

CRIMINAL PROCEDURE LAW-ENFORCEMENT ACTS

Muravev K.V.

Abstract

Procedural activity is non-uniform, is subdivided into adoption of proceeding decisions and implementation of criminal procedure actions. It is proved that proceeding decisions and actions of competent persons of criminal proceedings and also written documents certifying them can be called as criminal procedure acts. Criminal proceedings represent activities for the use of norms of the Criminal Procedure Code of the Russian Federation, are admissible to call the relevant procedural acts law-enforcement. A number of the intermediate and main decisions accepted in criminal proceedings are as well acts of application of the criminal law if fixing of substantive conditions for adoption of the relevant proceeding decisions in blanket norm of the Criminal Procedure Code of the Russian Federation with reference to a disposition or the sanction of criminal norm or through use of the general wording of the criminal law takes place and also if in the act a conclusion about the taken place specification of the criminal relation is made out.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):75-80
pages 75-80 views

ACTUAL PROBLEMS OF IMPROVING THE PROCEDURAL STATUS OF PARTICIPANTS OF THE PRE-TRIAL COOPERATION AGREEMENT

Bagautdinov K.F.

Abstract

The mechanism of implementation of the pre-trial agreement on cooperation involves participants
in criminal proceedings both from the prosecution and the defense. However, their role in the pre-trial cooperation agreement is different. The purpose of the study is to identify the role, features of the procedural status of the parties to the pre-trial agreement on cooperation, their interaction to build an optimal model for the implementation of the agreement.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):81-85
pages 81-85 views

PLACE AND MEANING OF MORAL CATEGORIES «JUSTICE» AND «CONSCIENCE» IN THE NORMS OF THE CURRENT CRIMINAL PROCEDURE LAW

Kornakova S.V.

Abstract

The article shows the importance of using such moral categories as «justice» and «conscience» in the norms of the current criminal procedure law. It is shown that the category of «justice» is used by the legislator only as one of the requirements for the verdict of the court, and the category of «conscience» – as a criterion of internal conviction of the subject in the legality and validity of any decisions in the course of criminal proceedings. The authors' judgments are critically evaluated, considering that all decisions made in criminal proceedings and procedural actions made on their basis must meet not only the requirements of legality, validity and motivation, but also the requirement of justice. The reasons for limiting the scope of the requirement of justice in criminal
proceedings are revealed, in connection with which the illegality of the reproach against the legislator in respect of the lack of the requirement of justice in part 4 of Article 7 of the Code of Criminal Procedure is shown. The author demonstrates the validity of the position of the legislator who used the categories of «justice» and «conscience» in the norms where they are contained, and the impossibility of their other position.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):86-92
pages 86-92 views

PURPOSE OF CRIMINAL PROCEEDINGS AND THE CATEGORY «INTEREST»

Popova I.P.

Abstract

The article is devoted to the study of problematic aspects of the tasks and purpose of criminal
proceedings. The study substantiated that the task of combating crime does not correspond to the purpose of criminal proceedings of a new protective type, designed to protect the rights and interests violated during the criminal law conflict. Based on the analysis of the norms of Article 6 of the Criminal Procedure Code of the Russian Federation, conclusions are drawn up on the need to reflect in it the restoration approach, a new edition is proposed. In formulating conclusions, the practical significance of the results obtained is substantiated: law enforcement officers understand the targets of their activities and the criminal process as a systemic phenomenon will help to choose the appropriate procedural form for resolving a criminal law conflict and reduce not only material costs, but also punitive impact. The paper substantiates the conclusion that the category of “interest” lies at the basis of criminal procedure, and its implementation is possible with the help of appropriate procedural means. Attention is paid to the low confidence in the work of the system and the subsystems of the criminal process, as a result of which non-traditional methods, such as a polygraph, have been used in proof. The conclusion is formulated about the impossibility of using the results of the use of polygraph in proof in connection with the fact that this contradicts the freedom to evaluate evidence by the subject of proof.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):93-101
pages 93-101 views

TACTIC OF PROTECTION THROUGH THE PRISM OF THE LAWYER'S ERRORS AND ABUSE OF LAW BY A LAWYER IN THE CRIMINAL PROCEEDINGS

Konin V.V.

Abstract

Analysis of the practice in the studied criminal cases, as well as a survey of the main participants in the criminal proceedings showed that a significant number of violations of the current legislation, as well as mistakes made by lawyers in the implementation of protection of their principal, are committed due to both legal nihilism and due to insufficient knowledge of lawyers of such disciplines as criminal procedure and criminology. The article deals with the tactics of defense in criminal proceedings, as well as issues of attorney errors and abuse of the right by a lawyer in the implementation of protection. The article presents and analyzes the opinions of investigators and judges on what is the mistake of a lawyer and abuse of the right by a lawyer, obtained as a result of the survey. In addition, an attempt has been made to define the concepts of «defence tactics», «lawyer’s error» and «lawyer’s abuse».

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):102-109
pages 102-109 views

CRIMINALISTIC COMPONENT IN THE ACTIVITIES OF THE PROSECUTOR FOR THE IDENTIFICATION AND DISCLOSURE OF BRIBERY

Khlus A.M.

Abstract

The article deals with the problem of implementation in practice of effective forensic research at
the stages of identifying and solving crimes of a corruption orientation, and, in this connection, the
role of the prosecutor's office is defined. The practice of the use of tactical operations as an integrated tactical tool for identifying and disclosing bribery is analyzed. It is proposed to amend the criminal procedural law in part of the exclusion of the stage of initiation of criminal proceedings. The author draws attention to the presence of obstacles to the implementation of a tactical operation, which can only be carried out after the initiation of a criminal case. This line of research is complemented by a consideration of the problem of participation of the prosecutor’s office in protecting individuals from unlawful criminal prosecution, which was a consequence of mistakes that were made when authorities engaged in investigative activities found to cooperate with citizens in relation to which an operational check was previously conducted.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):110-116
pages 110-116 views

Tribune of young scientist

NON-APPLICATION BY THE COURT OF AN ACT CONTRADICTING THE LAW: PROBLEM STATEMENT

Fetisova E.A.

Abstract

This article deals with the specifi city of the non-use by the court of an act contrary to the law as a way of protection of civil rights. The main doctrinal positions on the nature of the right to protection and on methods of protection are set out. The article is particularly relevant because of the fact that so far no comprehensive studies have been carried out on the particularities of the non-application by the court of an act contrary to the law from the point of view of the institution of administrative justice and the protection of civil rights, on the one hand, and the principle of legality and independence of judges, on the other. This issue became particularly acute in view of the adoption by the Constitutional Court of the Russian Federation on December 6, 2017 of the Resolution № 37-P, the subject of which was the constitutionality of part 13 of the Article 12 of the Civil Code of the Russian Federation. On the example of judicial practice the author demonstrates the atypical nature of the considered method of protection as well as the procedural diffi culties arising in connection with the part 13 of Article 12 of the Civil Code of the Russian Federation. On the basis of theoretical and practical arguments, the author concludes that the non-use by the court of an act contrary to the law does not fi t into the traditional perspective of the protection of subjective rights and the institution of administrative justice.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):117-124
pages 117-124 views

ON SOME ASPECTS OF JUDICIAL DISCRETION IN THE PROCESS OF COMPENSATION TO THE REPRESENTATIVE'S FEES

Kornilova A.V.

Abstract

This article is about the main problems of implementation of judicial discretion in the process of
compensation to the representative's fees. The urgency of the issue is due to the modernization of the civil process in Russia. This article attempts to uncover the essence of the concept of “judicial discretion in the compensation to the representative's fees”, and also presents the main directions of law enforcementpractice on the issue. The author has formed the main proposals for limiting the willful discretion. As a research task, the author identified an attempt to assess the criteria for reasonableness of representational expenses that exist in judicial practice. Proceeding from the received results of scientific work, the author comes to a conclusion that the compensation to the representative's fees by the court should be made taking into account the criteria relating to the essence of the case and the personality of the representative. At the same time the author emphasizes need of more detailed studying of the specified perspective.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):125-130
pages 125-130 views

CAUSING HARM BY MEDICAL WORKERS UNDER EXECUTION OF PROFESSIONAL RESPONSIBILITIES: SPECIAL FEATURES OF THE SUBJECTIVE`S SIDE

Askov N.N.

Abstract

The article analyzes the peculiarities of the subjective side of the cause of harm by medical workers in the implementation of medical interventions of various kinds in clinical situations. Emphasis is placed on the conditions of legality of extreme necessity and justified risk, specified in the criminal legislation of the Russian Federation, for the purpose of criminal legal assessment of practical activities of medical workers, in particular, the reality of the danger and the extreme of the chosen method of preventing more harm when absolutely necessary; the inability to achieve the goal without risky actions and the application of sufficient measures by the person to prevent harm to a reasonable risk. The difficulties encountered in the practice of a medical worker, calling into question the possibility of compliance with these conditions are analyzed. Particular attention is paid to the issue of taking into account professional experience and experience of a medical worker in the criminal law qualification of his actions. A new article «The conscientious performance of professional duties» has been proposed for introduction into Chapter 8 of the Criminal Code of the Russian Federation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):131-135
pages 131-135 views

GENERAL CHARACTERISTICS FOR IMPROVEMENT OF TECHNICAL AND FORENSIC PROVIDING IN CUSTOMS AUTHORITIES OF THE RUSSIAN FEDERATION

Makarenko V.G.

Abstract

In the present article the author gives a general characteristic of the system of Ongoing Forensic Support system for law-enforcement activity (OFS) existing in customs authorities and the analysis of processes of implementation of technical and criminalistic activity within the specified system is given. Also general provisions of the special document which formalization is intended to create the multilevel system of forensic providing not only law-enforcement activity, but also in the field of realization of functions of customs control are provided in paper. The author points to the relevance of measures to improve the processes under consideration, in view of the organizational and staff changes that have taken place in the customs authorities of Russia over the past few years, which may affect the accuracy of law enforcement in terms of the validity of decisions taken and obtaining substantial evidence in criminal cases on customs cases of violation of customs regulations. The set of measures proposed by the author creates the ground for the subsequent discussion in the branch of law under consideration, as well as the theory of customs.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):136-143
pages 136-143 views

Reviews

REVIEW OF THE OFFICIAL OPPONENT ON THE THESIS OF TATYANA VIKTOROVNA NADELYAEVA ON THE SUBJECT «FEATURES OF JUVENILE JUSTICE IN THE COURT OF THE FIRST INSTANCE», PRESENTED FOR THE DEGREE OF CANDIDATE OF LAW BY SPECIALTY 12.00.09 – CRIMINAL PROCESS

Shestakova L.A.

Abstract

This review was presented to the defense of the thesis of T. V. Nadelyaeva, held on December 19, 2018 in the dissertation council D 212.282.03, created on the basis of Ural State Law University.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2019;5(2):144-149
pages 144-149 views

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