Vol 4, No 1 (2018)

Full Issue

Theory of law and state

WHY PROCEDURAL JUSTICE DOES NOT EXIST

Mitrović D.М.

Abstract

Since the middle of the last century the interest in the naturally-legal research has been restored, and then intensified. At that time, there appeared new concepts advocating for the existence of different types of justice (corporate, solidarity, organisational, international, etc.) including procedural justice. The best-known advocates of the concepts of the existence of procedural justice were J. Rawls and O. Höffe, and later L. Fuller, H. Hart, R. Dworkin, P. Koller, M. Van den Bos and others. However, the aim of this work is not to support the idea of the existence of procedural justice suggested by the above writers, but rather to challenge it. This will be shown by referring to the obvious: justice is synonymous with truth, and not with rightness, on which the above writers develop the concept of procedural justice. Truthfulness is related to what exists, and rightness to the proper and accurate performance of appropriate
procedures. Otherwise, founding of procedural justice in truthfulness would be a kind of contradictio in adjecto arising from the confusion between justice and procedurality. The two terms are related but not similar, therefore truthfulness and rightness do not coincide, and nor do justice and law. Something that is truthful need not be righteous. And vice versa, something that is righteous need not be truthful. Apparently, it has to do with the relationship between the objective (truthfulness, justice and fairness) and the means (rightness, correctness, accuracy, reliability, etc., in a word, solidity). This relationship between truthfulness and rightness depicts rightness , first of all, as the means of the proper application of law, and only after that as the means of possible achievement of fairness in law. Of justice therein can be no mention. The aforesaid relationship shows another thing: only substantive legal rules can be just, while this cannot be the case with procedural rules. The consideration of the relationship of truthfulness and rightness in the example of the actually existing justice and the actually non-existent procedural justice, raises yet another important question: the relationship between material (substantive) and formal (procedural) legal rules. As it is rendered impossible to clearly and fully delineate them, thus are substantive rules relating to procedures declared the procedural, and all that only to acquire for procedural rules and positive law the aureole of justice. This cannot be accepted as correct because, for example, the principle of impartiality or the principle of fairness, which are wrongly considered procedural, indeed belong to substantive law. In still a deeper shade lies the question of the relationship between natural law and positive law. It seems that the insistence on the existence of procedural justice can be
regarded as the belated response of the members of positivist jurisprudence. Strange enough, that the existence of procedural justice is advocated by the writers who originally belonged to the direction of naturally-legal jurisprudence. It seems that both the former and the latter aim at showing positive law as just. Only in this case, it is not a construct but a simulacrum. It must be hard to believe in any authority as truth instead in truth as the only authority. Between the truthfulness of justice and the rightness of procedure lies fairness as the place of occasional meeting of justice and procedure. Therefore, procedural justice does not exist, but justice exists, though it is not procedural, and nor is fairness. Procedure is the only righteous means of law, but law is not the only righteous means of justice.

Juridical Journal of Samara University. 2018;4(1):7-15
pages 7-15 views

ON THE DEFINITION OF LEGAL RESPONSIBILITY

Potseluev E.L., Gorbunov A.E.

Abstract

The article critically analyzes the approaches of Soviet and modern Russian scientists to the notion of «legal responsibility». The authors prove the fallibility of the absolutization of state coercion as the main sign of legal responsibility, including retrospective, and support the idea of a two-facetedness of this institution, give its author's definition.

Juridical Journal of Samara University. 2018;4(1):16-22
pages 16-22 views

RELATION BETWEEN INITIAL SOURCE OF LAW, SOURCE OF LAW AND FORM OF LAW ACCORDING TO WILLED LAW-MAKING CONCEPT

Spirin M.Y.

Abstract

The author analyzes some limitations of the monistic and pluralistic approaches to the problem of correlation between the source of law and the form of law. The logical construction of interaction between the initial source of law, the source of law and the form of law as interrelated and independent categories according to willed law-making concept is proposed. The initial sources of law are determined as the objectively existing and affecting subjects of law-making factors. The source of law is an external expression (outside action) of the will of law-making activity`s subject at the moment of making a decision to create norms of law and fixing them within a certain form. As a form of law is understood the formal (formalized) shell of grouped norms of law; this shell is necessary for the subsequent realization of law and its interpretation. This linear logical construction of the categories «initial source of law» – «source of law» – «form of law» can be used to create potential unification of some theoretical and practical positions on the appropriate issues.

Juridical Journal of Samara University. 2018;4(1):23-28
pages 23-28 views

Constitutional law

FUNCTIONS OF THE PRESIDENTIAL POWER IN THE RUSSIAN FEDERATION

Osetrov S.A.

Abstract

In the article the functions of the President of Russia in the system of realization of public authority are observed and classification of those functions is offered. The author of the article distinguishes in the first place traditional representational function of the President of Russia, and secondly indicates the presence of specific functions of the head of the Russian country, connected with the coordination of public authorities and arbitration of public authorities in case of political conflicts. Thirdly, function of public administration that is realized by specific inherent presidential power methods, is observed. Meanwhile the author take an attempt to distinguish executive power and presidential power in the system of public administration. So that it is supposed that presidential power have an authority to moderate the executive power. The author of the article comes to the conclusion of the independent political and law nature of the functions of presidential power, that are not peculiar to the other branches of power.

Juridical Journal of Samara University. 2018;4(1):29-37
pages 29-37 views

International law

TERRITORIAL DISPUTES IN THE EAST CHINA SEA

Dimitrijević D.

Abstract

The issue of territorial delineation in the East China Sea has a geo-economics significance due to the presence of rich energy sources as well as to the intertwined interests of the coastal states and the interests of the United States, that, for strategic reasons, tends to maintain its political and military presence and control. In the last decade, China, Taiwan and Japan have intensified their territorial demands in the East China Sea over the islands that the Chinese call Diaoyu, Taiwanese Diaoyutai, and the Japanese Senkaku (hereinafter: Senkaku/Diaoyu Islands). Due to the increasingly visible escalation in mutual relations arising from different points of view regarding the sovereignty of these islands and different approaches in terms of determining the boundaries of exclusive economic zones and continental shelves, where no party wants to make concessions to the other party, the application of international law seems an inevitable mechanism for overcoming territorial disputes. In this regard, the study deals with the possibilities to resolve territorial disputes in the East China Sea in order to achieve sustainable legal solutions that would be in accordance with the international law of the sea, and whose application would ensure peace and stability in this part of the world.

Juridical Journal of Samara University. 2018;4(1):38-46
pages 38-46 views

FACILITIES, PRIVILEGES AND IMMUNITIES OF THE REPRESENTATIVES OF INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL OFFICIALS

Jerotijević D., Jerotijević Z.

Abstract

International organizations represent the creations of recent times and respond to the needs of the modern world. Achieving awareness of the need for international cooperation is conditioned by economic and technological development. Bilateral interstate relations, from occasional contact to permanent interchange by diplomatic envoys, could meet the needs of the times of moderate international exchange and poor means of ties. International organizations have a special significance for tackling the contradiction between the existence of a number of sovereign states and the demands of those human activities that have global or regional exchanges and seek for a basis broader than the territory of an individual state. The simplest definition of an international organization is that they are established by an international treaty, which is ratified in accordance with the constitution established by the Member States. In addition to rare exceptions, the creation of an international organization begins with convening a conference of proxies of states, where the status of the organization is signed after the negotiations have been completed. Such conferences can precede a period in which countries agree on the important issues of a future organization. These can be raised through diplomatic channels, or negotiations at one or more previous meetings with the participation of all or some of future founders of the organization. The privileges and immunities of international organizations themselves, as subjects of international law, include the following forms: immunity from jurisdiction, inviolability of premises and archives, fiscal and currency privileges, freedom of communication.

Juridical Journal of Samara University. 2018;4(1):47-53
pages 47-53 views

Civil law

EMPOWERING THE PARTICIPATION OF ENTREPRENEURS IN PUBLIC PROCUREMENT

Shmeleva M.V.

Abstract

The article deals with the issues of equal opportunities for participation in public procurement. Many public procurement systems are based on the principle of equality of persons involved in procurement. Equality can serve not only as a means to achieve various objectives of the public procurement system, such as the development of fair competition, preventing corruption and other abuses and meeting the needs of legal entities (customers) in goods, works, services with the necessary price, quality and reliability, but also to be objectively present in the procurement process as an independent right. One of the main problems related to the principle of equal treatment is that this principle is often not sufficiently clearly defined by the legislator and it is not clear what role it should play in the procurement system – it will only be a means for other purposes or a separate purpose in the procurement law. The author believes that the expansion of opportunities for participation in procurement is the basic task of the Institute of public procurement, which should be taken into account in the procurement procedures, as well as in the formation of the content and structure of the Russian legislation. The article reveals the meaning of the specified goal. As a result of the study, the author comes to the conclusion that the procurement procedure, in which all interested persons have equal opportunities to participate, can act as a legal mechanism for the state customer to find the best conditions for the supply of goods, performance of work and provision of services.

Juridical Journal of Samara University. 2018;4(1):54-60
pages 54-60 views

Labour law and social security law

LEGAL FORMS OF LABOR OF MINORS

Bronnikova M.N.

Abstract

The state is interested in the strict regulation of the involvement of children in labor, especially at an early age. The paper concludes that there are more stringent requirements for the employment of juveniles in comparison with the employment of adults. The interdisciplinary nature of this article is due to the consideration in it of the peculiarities of organization of work of minors as by the conclusion of a civil law contract, and also the labor, student's contract, the use of labor in the passage of practice, on duty. It is established that, as a rule, by virtue of age, the minor performs work under the control and management of the customer, uses his property, and therefore the relations of performing work to minors are labor, not civil-law. Does not contradict the interests of the minor and the conclusion of the student's contract. However, in the context of modern legal regulation, it is not possible to make an unambiguous conclusion as to the legal nature of the student's contract with a minor who is looking for a job. The work concludes that for the conclusion of a student's contract with a minor, the permission and consent of the parents (guardians, trustees) and state (municipal) bodies is necessary. In detail, the article reveals socially significant issues of labor protection for a minor, including the obligation to conduct briefings, training, training in safe methods and methods of performing work, testing knowledge of labor protection requirements.

Juridical Journal of Samara University. 2018;4(1):61-67
pages 61-67 views

Criminal law

ON THE POSSIBILITY AND LIMITS OF TAKING INTO ACCOUNT THE INTERNATIONAL EXPERIENCE OF THE RESOCIALIZATION OF PRISONERS SENTENCED TO THE DEPRIVATION OF LIBERTY

Adoyevskaya O.A.

Abstract

The article examines the possibilities and limits of taking into account international experience in the sphere of resocialization of prisoners sentenced to the deprivation of liberty. The updated UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rule, 2015) are analyzed and special attention is paid to the provisions of this international act on the social ties of prisoners and their guardianship after release. The problems of the formation of the Russian state policy in the sphere of resocialization of persons released from serving their sentences are shown. The notion of resocialization, which is understood as the process of integrating persons who served a sentence, into the system of social relations by means of mastering a new socio-cultural environment is given. The conclusion is made that it is necessary to adopt the federal law «On the resocialization of persons who have served a criminal sentence and were released from it»., which should reflect the main directions and means of post-penitentiary assistance to persons released from serving their sentence. The question is raised about the need to develop a Road Map for resocialization and the real inclusion in civil society of persons who have served a criminal sentence and who have been released from it.

Juridical Journal of Samara University. 2018;4(1):68-72
pages 68-72 views

SOME ASPECTS OF THE HISTORY OF SCIENTIFIC VIEWS FORMATION ON THE INSTITUTE OF CONSENT OF THE VICTIM TO BE HARMED IN THE RUSSIAN EMPIRE

Baboshina E.V., Loba V.E.

Abstract

There are considered scientific ideas existed in Russia in the nineteenth and early twentieth centuries which were connected with the criminal justice response to inflicted harm to the interests protected by criminal law from the consent of the victim or at his request. The article focuses on the issues of assessing the consent of the victim to be harmed, depending on the object of the criminal-legal protection. The source of the article was monographic and dissertational research of criminology scientists of the XIX–XX centuries.

Juridical Journal of Samara University. 2018;4(1):73-77
pages 73-77 views

COURT FINE AS THE OTHER MEASURE OF CRIMINAL-LEGAL STATUS

Golenko D.V.

Abstract

The article observes the problems of exemption from criminal liability realization with court fine imposition. The author analyzed the term «court fine» in various laws of the Russian Federation. The author draws attention to the correlation of another measure of a criminal-legal nature in the form of a court fine and punishment in the form of a fine. The questions of practice of application of the judicial penalty, problems arising at lawyers at its execution are investigated. The author illustrated possible negative consequences of the other measure of criminal-legal status implementation in the means of court fine. The сritical analysis is given to the provisions contained in the Federal Law No. 323-FZ dated July 03, 2016 «About alterations being made in the Criminal Code of the Russian Federation and in the Criminal Procedure Code of the Russian Federation of the Russian Federation concerning the guestions of improving foundations and basis of exemption from the criminal liability» and other innovations. The article contains an analysis of judicial practice on the application of a court fine, as well as recommendations set forth in Resolution of the Plenum of the Supreme Court of the Russian Federation No. 56 dated November 29.

Juridical Journal of Samara University. 2018;4(1):78-82
pages 78-82 views

ABOUT THE PROBLEM OF TAKING INTO ACCOUNT SOCIALLY SIGNIFICANT DISEASES AS CIRCUMSTANCES MITIGATING PUNISHMENT

Norvartyan Y.S.

Abstract

On the basis of materials of modern litigation practice the author focuses on the problem of recognition of mitigating punishment circumstance as the presence at the perpetrator of socially significant diseases. The author comes to the conclusion, if the person at the time of commission of a crime was suffering socially significant disease, but by the time of sentencing recovered, enforcers also need to take this into account as a mitigating punishment, as specified circumstance significantly reduce the degree of public danger of committed crimes and are subject to mandatory accounting in sentencing. In addition, the specified condition is not subject to unconditional acceptance by the court as an attenuating circumstance. In case a person suffering from socially significant disease does not care about the health of others, leads a promiscuous sexual lifestyle, committing crimes against sexual inviolability and sexual freedom of the person or other crimes related to the risk of infection victims socially dangerous diseases, you should not consider the presence of such diseases as the circumstance commuting punishment.

Juridical Journal of Samara University. 2018;4(1):83-87
pages 83-87 views

Ethics and psychology of law-enforcement activity

ESSAY ON THE DEVELOPMENT OF THE BAR IN RUSSIA

Iunoshev S.V.

Abstract

The article examines the historical trends of the development of the Bar in Russia. The way of formation and development of a professional lawyer's representation from the origins of representation in the domestic legal process in the 15th century is traced, and up to the adoption of the current Russian law on advocacy in 2002. Complex and generally contradictory relationship between the state and legal profession throughout its existence is shown. Special attention is paid to the «golden age» of the Russian advocacy, which began after the Great Judicial Reform of Emperor Alexander II and lasted only half a century. In this connection, both the institution of sworn attorneys and the institute of private attorneys introduced later and causing a lot of criticism were subjected to analysis. Further, the thorny path of legal profession during the Soviet period of state and law from the Decree on Court No. 1 to the Regulation on the Bar of the RSFSR of 1980 is traced. The adoption of the current Federal Law «On Advocacy» in 2002 was due to radical changes in Russian society, which led to an increase in the demand for qualified legal assistance and the needs for effective protection of human rights and freedoms.

Juridical Journal of Samara University. 2018;4(1):88-92
pages 88-92 views

Criminal procedure

AN INVESTIGATOR IN POST-SOVIET CRIMINAL PROCESS

Savelev K.A.

Abstract

The article is devoted to the development of legislation on pre-trial proceedings in criminal cases in the post-Soviet countries. Changes in the rights of the defence during the preliminary investigation of these countries are considered. The lack of a link between the actions of the investigating judge and the competitiveness of preliminary investigation is shown. The comparative analysis of historical and contemporary forms of participation by investigating judges in the criminal process is carried out. The general trends of development of legislation of the former Soviet States are set. Recommendations for improving legislation are given. 

Juridical Journal of Samara University. 2018;4(1):93-99
pages 93-99 views

Criminalistics and forensic enquiry

CRIMINALISTIC ANALYSIS OF THE OBJECT AND THE SUBJECT OF APPROACH IN THE STRUCTURE OF CRIMES

Khlus A.M.

Abstract

In this article, the problem of the relationship between the concepts of object and the subject of criminal encroachment in criminal law and criminalistics is examined. The work has an interdisciplinary character and is of interest from the standpoint of the development of integration processes between the sciences of the criminal law cycle. The author comes to the conclusion that the abstract character of the object of crime as an element of the criminallegal structure does not satisfy the needs of criminology. Do not reflect the system of traces containing significant information about the crime and its elements. In the article it is suggested from the point of view of criminalistics to consider an object as an element of the structure of a crime in the form of a material aggregate or systemic formation directly affected, one or several constituent parts of them can determine the purpose of a criminal act. The author focused on such objects of the material structure of the crime as a person, property, computer and other electronic systems, money and securities, vehicles, enterprises, institutions, firms, state bodies. Particular attention in the work the author focuses on the relationship between the object and the subject of encroachment, which in some cases can be correlated as general and particular. The author from the point of view of criminalistics gives a generalized description of the subject of encroachment, which he considers a material element of the criminal act, which determines the target orientation in the activity of the subject of encroachments.

Juridical Journal of Samara University. 2018;4(1):100-107
pages 100-107 views

Tribune of young scientist

TRANSBORDER CONSTRUCTION CONTRACT AS A SUI GENERIS CONTRACT

Goddard I.A.

Abstract

The author investigates the problems of normative and legal regulation of relations arising due to a cross-border construction contract. The author analyzes the concept of «contract» in its transborder meaning, analyses the principles of choice of law in cases when parties to the treaty have not provided for the applicable law, examines general theoretical and international private law doctrine and arbitration practice on the issue of a cross-border construction contract. In order to properly resolve a dispute from a cross-border construction contract, the court must establish the transborder nature of private-law relations, whether their contractual or non-contractual nature, establish the legal nature (type) of the transaction in order to determine the applicable law. The author examines the features and peculiarities of a cross-border construction contract, which facilitates the establishment of these facts for the court and concludes that it is necessary to separate this sort of contracts into a separate type. The most important aspects revealed by the author in the article concern the theoretical and practical aspects of defining the characteristics and features of the transboundary construction contract. In conclusion, the author comes to the conclusion that the cross-border construction contract is a contract sui generis.

Juridical Journal of Samara University. 2018;4(1):108-113
pages 108-113 views

CONSEQUENCES OF BREACH OF CREDITOR’S OBLIGATIONS

Gurova E.A.

Abstract

The article considers the measures which should be applied to a creditor in case of breach of creditor’s obligations. The author states that performance of creditor’s obligations is protected by civil-law sanction. The term «sanction» is comprehended by the author in a general sense and integrates penalties and other protection measures. Under the Civil Code of the RF compensation of losses can be applied to a creditor as a penalty, but other protection measures are applied to acreditor oftener (for example,onesided change of contract conditions by adebtor) because of subsidiary character of creditor’s obligations. At the same time, ensuring performance of such duties by civillaw sanctions emphasizes their importance for the proper performance of obligation and allows to make aconclusion that creditor’s obligations are an independent element of the content of the civil obligation and are not a part of acreditor’s right.

Juridical Journal of Samara University. 2018;4(1):114-117
pages 114-117 views

REHABILITATION AS THE PURPOSE OF PRODUCTION ON THE CRIMINAL CASE AGAINST THE DEAD

Meshcheryakova J.O.

Abstract

The article deals with rehabilitation as the purpose of criminal case after the death of the suspect (accused). The relevance of the study is determined by the need to protect the honor and good name of the deceased, to preserve a worthy relationship to it. Rehabilitation is considered by the author as one of the ways of such protection, in connection with which it is the sole purpose of the proceedings in the criminal case against the deceased. The topic is revealed through the analysis of the content of rehabilitation institute. The author comes to the conclusion that for a deceased, rehabilitation consists in recognizing him as innocent of the commission of a crime, by adopting an appropriate criminal procedural act (verdict, resolution, determination). The legal consequence of such recognition is the emergence of close relatives of the deceased or other interested persons of the right to seek the restoration of a good name and a good memory of the deceased, as well as the right to seek redress for harm caused by unlawful and unreasonable criminal prosecution of the deceased.

Juridical Journal of Samara University. 2018;4(1):118-124
pages 118-124 views

STRUCTURE OF CONTRACTUAL COMMUNICATIONS AT MANAGING MULTI-FAMILY BUILDING BY HOMEOWNERS ASSOCIATION AND SPECIALIZED COOPERATIVE

Trufanov A.V.

Abstract

The author uses O. S. Ioffe’s classification of structure of contractual communications on simple and complex by criterion of concurrence of parties to the contract and implementer, considers different variants of formation of structure of contractual communications at managing multi-family building by homeowners association and specialized cooperative; the author differentiates these variants depending on how these subjects manage multi-family building – directly or by contract with managing organization. The author concludes that process ofmanaging a multi-family building by homeowners association and specialized cooperative has multilevel management system and complex structure ofcontractual communications. In addition, the author analyzes some advantages and disadvantages of different management options, in critical keys considers some formulations of current housing legislation.

Juridical Journal of Samara University. 2018;4(1):125-128
pages 125-128 views

COOPERATION OF LOCAL GOVERNMENTS AND SELF-GOVERNMENT AS A PRINCIPLE OF ORGANIZATION OF LOCAL GOVERNMENT

Esmantovich E.I.

Abstract

The study of problematic issues of development of existing legal forms of selforganization of municipalities as self-governing bodies, and their interaction with public authorities in the form of governing bodies, including those operating at the grassroots level, is a long-standing object of scientific research of scientists. The article considers the directions of interaction between local authorities and selfgovernment of the Republic of Belarus, analyzes the legislation in this area. The author analyzes different types of relations between the authorities in the form of governing bodies, including those operating in the sphere of realization of the right of citizens to form authorities through elections, and local governments. At the present stage of development of the Republic of Belarus, the level of democracy plays an increasingly important role, which is characterized, among other things, by the degree of interaction between government bodies and local self-government bodies, and the influence of local self-government bodies, as an institution of civil society, on the process of formation of public power. This is due to the fact that local self-government is the closest to the population level of public authority, and thereby implements the constitutional right to participate in the governance of state. According to the results of the research the list of separate types of forms of interaction of designated subjects of power and administrative relations is offered. The theoretical conclusions presented in the paper can become the basis for improving the mechanism of interaction of public authorities in the face of local government bodies with local authorities.

Juridical Journal of Samara University. 2018;4(1):129-134
pages 129-134 views

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