Vol 5, No 1 (2019)

Full Issue

Criminal procedure

ON THE EVIDENTIARY VALUE OF THE DETENTION PROTOCOL

Tarasov А.А.

Abstract

The novelty of the article is due to the non-standard perspective of the analysis of the problem of determining the procedural nature of the detention of a suspect and the possibility or impossibility of referring him to the number of investigative actions to collect evidence. The author proposes to abstract from the dispute on the possibility of considering detention as an investigative action and assess the evidentiary value of the Protocol of detention of the suspect as a result of this procedural action. In this context, the features of the use of this Protocol in the descriptive and motivational parts of the final procedural decisions of the preliminary investigation and court sentences are of interest. The purpose of this analysis is to obtain additional arguments in favor of the thesis that in most cases the detention of a suspect is obtained such information about the legally significant circumstances of the criminal case, which can not be obtained in the production of any other procedural actions. These data shall be recorded in the Protocol of detention. The task was to identify the real value of the detention Protocol to establish the circumstances to be proved in a criminal case, to analyze the requirements of the current law to the content of the detention Protocol in order to ensure its information saturation, to identify the reserves of normative regulation and practice of drawing up detention protocols to ensure the role in proving that it could play. The article uses the methods of system analysis and synthesis, comparative legal and historical methods. The study shows that detention of a suspect due to the forms of fixing its progress and results – Protocol of detention – is a unique method of fastening the materials of the criminal case information that cannot be obtained by any other procedural means. In conclusion, measures are proposed to improve the practice of detaining a suspect and drawing up his report.

Juridical Journal of Samara University. 2019;5(1):7-12
pages 7-12 views

DISCUSSION «TARASOV VS ROSSINSKIY» ABOUT DETENTION OF THE SUSPECT: SUMMING UP THE FIRST RESULTS

Rossinskiy S.B.

Abstract

This article describes the content of the author’s speech at the conference «Act of detention as evidence in criminal proceedings: Pros and Cons» (September 26, 2018, Samara National Research University, Faculty of Law). The author analyzes the reasons for the discussion «Tarasov vs Rossinskiy» between him and professor A. A. Tarasov about the nature of detention of a person suspected of committing a crime. The author concludes that detention actually remains a «police» act, which is used for maintaining proper investigation. And the procedural decision to detain does not have a «high» legal meaning, which is found in other resolutive acts of preliminary investigation.

Juridical Journal of Samara University. 2019;5(1):13-19
pages 13-19 views

DETENTION OF THE SUSPECT: PROBLEM OF CALCULATION OF THE TERM

Starodubova G.V.

Abstract

In the article the problem of calculation of the term of detention of the crime suspect is analyzed. Examples from investigative court practice of definition of the moment with which the current of 48 hours specified in the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation begins are given. The conclusion about need of fixing for the protocol of the moment of bringing of the inquiry delayed in body or to the investigator is drawn. The problem of long bringing of the suspect for the reasons having objective character is analyzed. It is offered to fix the procedure of the subsequent judicial control of validity of a delay of transfer of the suspect to the investigator or investigator.

Juridical Journal of Samara University. 2019;5(1):20-24
pages 20-24 views

DISTRIBUTION OF POWER OF PRELIMINARY INVESTIGATION BODIES, PROCURATOR AND EVIDENCE EXAMINATION COURT

Lazareva V.A., Nikolaeva K.N.

Abstract

The article deals with the problems of evidence examination as a complex multistage process, in which the results of previous examination activities are subject to controls at the next stages of criminal proceedings, the article examines the issue of distribution of power for evidence examination of authorized participants in criminal proceedings. Based on a study of the methods for evidence examination at different stages of criminal proceedings, the limitations of evidence examination at the preliminary investigation stage are shown. The burden of evidence examination, including its admissibility, is court’s responsibility and is carried out in almost all judicial instances, including the stage of sentence reviewing because of new and newly discovered circumstances. According to the plan of the legislator, the preliminary hearing was supposed to serve as a tool for evidence examination. One of the functions of preliminary hearing is the exclusion of inadmissible evidence. However, this important function of the preliminary hearing was made senseless by the possibility of revising the assessment of the excluded, as inadmissible, evidence in the next stage of the criminal process. As a result, the court, instead of considering the merits of the case and examining exclusively the content of evidence in order to assess the validity of the charges, investigates their admissibility, and its inner conviction is shaped by all the evidence, including those obtained in law violation. To solve this problem, modern researchers propose the introduction of the institute of investigative judges, who, prior to the beginning of the trial, will have to check the evidence from the point of view of their admissibility, which will exclude the examination of inadmissible evidence during the consideration of the criminal case, as well as strengthen the adversarial principles in the pre-trial part of the criminal process.

Juridical Journal of Samara University. 2019;5(1):25-30
pages 25-30 views

UNIFICATION OF THE CRIMINAL PROCEDURE LAW IN THE ASPECT OF HERMENEUTIC SCIENCE

Levchenko O.V., Mishchenko E.V.

Abstract

The article deals with the problematic issues of the process of unification of criminal procedure legislation. Criminal procedure law as a legal phenomenon is studied through the prism of the science of hermeneutics, which examines the problems associated with the meaning of language, its understanding, explanation, interpretation and other aspects that are important for the unification of legislation. The authors note that following hermeneutic logic, criminal procedure law is a science in the sense in which it operates with general basic concepts and makes it possible to bring a specific fact under a typical generalization developed by this science. In criminal procedure law, as in any other law, it is important to understand, explain and interpret its text. The algorithm of full understanding of the text of articles of the criminal procedure law in aspect of hermeneutic logic is offered. Examples of violation of hermeneutic logic are given in articles of the Code of Criminal Procedure, procedural branches of the Russian law and it is concluded that modern lawmaking should take into account the provisions of hermeneutic science in order to preserve the uniform consolidation and interpretation of the fundamental provisions affecting the practice of law enforcement agencies and the court.

Juridical Journal of Samara University. 2019;5(1):31-35
pages 31-35 views

SUSPICION IN THE RUSSIAN AND GERMAN CRIMINAL PROCESSES

Ploshkina Y.M.

Abstract

The study deals with the concept of suspicion in the criminal procedure law of Russia and Germany. The suspicion is the central element of the whole of the German criminal process. The doctrine of suspicion has a long standing history in the criminal procedure law of Germany, so its analysis made by this research is of great importance to the Russian law enforcers. The presence of suspicion in Germany is the basis for the application of the measures of criminal procedural coercion, because the interference in constitutional rights and freedoms of a person from the criminal prosecution organs is permissible only when the suspicion is established. The suspicion is necessary for a person to acquire the procedural status of the accused. That is why the definition of the concept of initial suspicion, the moment it occurs, as well as the way every specific occasion states the initial suspicion availability are of particular interest. The article considers the elements of the initial suspicion and the tools, which are developed by the German judicial practice and doctrine, to verify the presence or absence of the initial suspicion.

Juridical Journal of Samara University. 2019;5(1):36-43
pages 36-43 views

Criminalistics and forensic enquiry

EFFECTIVENESS OF ANTI-CORRUPTION ACTIVITIES IN THE PENAL SYSTEM, AS A MEANS OF OVERLAPPING OF CHANNELS OF DELIVERY TO CORRECTIONAL FACILITIES OF PROHIBITED ITEMS

Gorban D.V., Efremova O.S.

Abstract

The article presents a comprehensive study of effectiveness of anti-corruption activities in the penal system as a means of blocking the channels of delivery to correctional institutions, as well as the detention centers of prohibited items. This topic is of some relevance, and also has a sign of scientific novelty due to the lack of detailed development in the scientific literature. Corruption as a negative social phenomenon affects all spheres of society, including the penal system. One of the manifestations of corruption crime in the penitentiary system is the delivery of prohibited items and things to the regime territory by the staff of the correctional institution or the remand prison and their transfer to the convicted, suspects, accused. This direction of corruption crime has a very negative impact on the operational situation in the correctional institution, the detention center and therefore requires the adoption of serious preventive measures. On the basis of the research carried out a number of organizational and legal measures aimed at the suppression of corruption acts on the part of the staff of the penal system associated with the delivery of prohibited items and things on the territory of correctional institutions, as well as detention centers.

Juridical Journal of Samara University. 2019;5(1):44-51
pages 44-51 views

Criminal and penal law

CONVENTION NORMS ABOUT THE RESOCIALIZATION OF CONVICTS

Adoyevskaya O.A.

Abstract

The article deals with the problems of guaranteeing the rights of convicts and persons who have served a sentence and have been released from it, taking into account conventional norms. The norms of the UN Convention against Torture and Other Same-Wanted, Inhuman or Degrading Treatment or Punishment (1984), the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the UN Standard Minimum Rules for the Treatment of prisoners (Rules of Nelson Mandela (2015) and other international acts guaranteeing the rights of convicts. The problems of formation of the Russian penitentiary policy in the field of re-socialization of convicts are shown. The ways of improving the norms of the criminal-executive legislation on the main means of correction aimed at the re-socialization of convicts after serving the sentence: educational work, socially useful work, vocational training and social impact are proposed. It is proposed in the penal legislation to provide for the profiling of correctional institutions for certain types of production activities, including on the basis of public-private partnership. The conclusion is made about the need to cooperate production activities in the institutions of the penitentiary system with similar production activities in other organizations in order to further employment of the convicted person in these organizations.

Juridical Journal of Samara University. 2019;5(1):52-58
pages 52-58 views

EARLY RELEASE FROM BREAKDOWN PENALTIES: COMPARATIVE LEGAL ANALYSIS OF THE CRIMINAL LEGISLATION OF THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA AND THE RUSSIAN FEDERATION

Skiba A.P., Kovsh A.V., Myakhanova A.N.

Abstract

The article presents a comparative legal analysis of a number of norms of the North Korean and Russian criminal legislation regulating early release from serving a sentence. The types of early release from serving the sentence and their content are considered, as well as some features of the North Korean criminal law regulation are revealed. Articles of the Criminal Code of the Democratic People’s Republic of Korea containing the aspects under consideration are structurally included in the Chapter of «Punishment», in particular: special pardon and amnesty (Article 54); reduction of sentence and early release (Article 55); legal status of the person who has served the sentence (Article 56). Special attention is paid to the application of amnesty, pardon, as well as early release from serving a sentence based on the good behavior of the convicted person. In addition, the North Korean system of criminal penalties is shown. The author’s version of Article 54 of the Criminal Code of the Democratic People’s Republic of Korea «Special pardon and amnesty» is formulated.

Juridical Journal of Samara University. 2019;5(1):59-64
pages 59-64 views

Constitutional law

INFORMING ABOUT THE RISK ASSOCIATED WITH MEDICAL CARE PRATICE

Sergeev V.V., Gorlova E.V.

Abstract

The article is devoted to a key aspect of informed consent – the risk, associated with medical intervention. The article describes various volumes of information to the patient: hyperinforming, pseudoinforming and hypoinforming, their positive and negative aspects are described. Judicial practice of adverse legal consequences of incomplete informing of the patient about the risk associated with medical care practice by the medical worker about medical intervention is considered. Examples of normative legal acts regulating the volume of informed consent medical intervention are given, their informative value and completeness of the information provided in them are evaluated. Different variations of informing of the patient about the risks of causing death, harm to health and pain associated with medical intervention are considered. Here one will find a suggested optimal amount of information provided to the patient as it pertains to the risk of death, personal injury and pain, while obtaining an informed consent for medical intervention.

Juridical Journal of Samara University. 2019;5(1):65-70
pages 65-70 views

International law

MAIN SOURCES OF INTERNATIONAL LAW AND THEIR HIERARCHICAL RELATIONSHIP (PART 2)

Krivocapich B.

Abstract

The question of the sources of international law, which of them are the most important and the hierarchical relationship between them is not one of the most important, but at the same time the «eternal problem» of science and practice of international law. The answer determines the attitude to other (specific) problems. In addition, this category is changeless, it is in constant development, which means that it is necessary to return to it from time to time and consider it in the light of new events and relationships. For this reason, the author of the article chose this particular topic, trying to reveal it in a slightly different way than is customary in legal literature. A special intention was to point out the relativity of classifications and conclusions, as well as the growing role of decisions of international organizations. There was also a desire to provoke a scientific debate about the issues raised. The article consists of three parts. The first provides a brief overview of the sources of international law, and the author, unlike the generally accepted approach, distinguishes between the main and most important sources of international law. The second part deals with the problem of importance and interrelation of the most important sources of international law - international treaties, international legal customs and decisions of international organizations. In the third and final part, the author points to the identified problems. He particularly emphasizes the fact that in international law there is no rigid hierarchy between the norms of the most important sources of this right, as well as the fact that in the future, due to the irrepressible processes of globalization, we can expect an increase in the role of decisions of international organizations.

Juridical Journal of Samara University. 2019;5(1):71-79
pages 71-79 views

ON THE QUESTION OF THE INTERNATIONAL LEGAL SYSTEM

Melnikova M.V.

Abstract

The article analyzes the controversial legal question of the possibility of allocation of international law in an independent legal system. The legal system is a complex phenomenon that makes up one of the subsystems of society, along with the political system, economic, spiritual and cultural, etc.and includes the system of law, the system of legislation, sources of law, lawmaking and the application of law, as well as other factors in the field of law, on the basis of which it is possible to characterize the national legal system. There is a point of view that the above concepts of the content of the national legal system are applicable to the definition of the international legal system, as the above elements are quite correlated with it. However, it should be noted that the international legal system is an independent legal system that does not replace the concept of the national legal system. The question of expediency of consideration of not supranationality, but mutual influence of the international and national legal systems is proved.

Juridical Journal of Samara University. 2019;5(1):80-84
pages 80-84 views

WHAT COULD BE A SUPRANATIONAL (GLOBAL) TREATY IN THE FIELD OF SPORTS

Vasilev I.A., Vasilyev A.D.

Abstract

The article concerns the prospects for the formation of the treaty for the field of sports, it is proposed to study and systematize certain law aspects: what influences on the status of the treaty and its main functions in the system of international sports law today. To do this, the authors turn to unexplored concepts, terms of an international treaty in the modern theory of law, considered the principles and norms of international law regulation in the field of sports. Characteristic features of international sports regulation through Lex Sportiva are highlighted and described. The debatable issue of the law framework for international regulation in the field of sports and the influence on it of the institutional framework for organizing international sports activities will remain the subject of international sports law. In this article, the authors address the content of such concepts as «the Treaty of Lisbon», «international treaty for the field of sports», «international sports law», «sports activities, autonomy of norms», «selfregulation». The presented view and concern will be of interest to specialists in the field of international sports law.

Juridical Journal of Samara University. 2019;5(1):85-89
pages 85-89 views

Family and housing law

FAIRNESS AND ABUSE OF INTEREST IN VALIDITY OF MARRIAGE

Zamriy O.N.

Abstract

The article demonstrates the interconnection and interdependence of the good faith of persons entering into marriage, and the recognition by the state of the reality of a marriage union. A new look at the status of a bona fide spouse is presented, the ratio of spouse’s good faith behavior and misuse of interest in marriage is established. Parallels were made between the principle of good faith in civil matters and the presumption of good faith of spouses as subjects of family relations, the validity of which is challenged in court.

Juridical Journal of Samara University. 2019;5(1):90-95
pages 90-95 views

Tribune of young scientist

LEGAL PARAMETERS OF PUBLIC EXAMINATION OF LEGAL ACTS

Pechegina Y.S.

Abstract

This article focuses on the practice of use of the institute of public examination, which ensure
implementation of the constitutional law on the participation of citizens in managing the affairs of state set out in the part 1 of the Article 32 of the Constitution of the Russian Federation, analyses the basic problems of its legislative regulation. The article stated the main objective, theoretical rationale for functions of public examination as a mechanism of social control, the characteristic of the subjects and objects of public expert examination. Ensuring and increasing the involvement of population in order to improve the enforcement and public examination is an essential element in the development of civil society.

Juridical Journal of Samara University. 2019;5(1):109-113
pages 109-113 views

PURPOSE OF PUNISHMENT IN TERMS OF CRIMINAL PROCEEDINGS BY THE ABBREVIATED FORM OF INQUIRY

Mingalimova M.F.

Abstract

In the article the author analyzes the order and feature of sentencing in criminal cases, the inquiry on which was carried out in a shortened form. Specific examples from judicial practice demonstrate the complexity of the implementation of the principle of individualization of punishment in this category of cases due to the establishment of the legislative limit of the upper limit of punishment. To obtain objective data, the comparative analysis is based on the results of consideration of criminal cases of crimes under Article 314.1 of the Criminal Code. In addition, the article focuses on the circumstances that contribute to and prevent the production of a shortened form of inquiry, as well as analyzes the procedure of judicial proceedings and the procedure for holding a court hearing in criminal cases, the preliminary investigation of which was conducted under a simplified scheme. Based on the findings, the author suggests ways to improve the current legislation, one of which is to amend Article 62 of the Criminal Code. In addition, the article provides examples from the appellate practice of appealing against sentences handed down in criminal cases investigated in a shortened form.

Juridical Journal of Samara University. 2019;5(1):114-121
pages 114-121 views

POST-CRIMINAL IMPACT IN RELATION TO WITNESSES AS THE GROUND OF SECURITY MEASURES APPLICATION: METHODS, CONSEQUENCES AND WAYS OF OVERCOMING

Svechnikovа E.I.

Abstract

The article deals with a phenomenon of post-criminal impact which acts as the ground of security measures application in relation to witnesses, according to Part 3 Article 11 of the Russian Criminal Procedure Code (CPC). The author analyses thoroughly the characteristics of post-criminal impact, examines the definition, features, types and forms of threats spoken to the persons assisted to the justice. This article reveals different problems of application of legal rule in Part 3 Article 11 of CPC, studies its content, uncovers its disadvantages and suggests necessary amendments in criminal procedure law. The author raises the question of possible introduction of criminal responsibility for stalking of witnesses because of their assistance to justice, gives a positive example of foreign experience of introduction a separate crime «stalking» in criminal legislation and supports this position with several arguments. With in the article the author substantiates her position using vast theoretical material, the data of questionnaire survey of practitioners, specialised on preliminary investigation and trial proceedings, as soon as cites the specific examples of post-criminal impact from judicial practice.

Juridical Journal of Samara University. 2019;5(1):122-130
pages 122-130 views

DEVELOPMENT OF THE DOCTRINE ABOUT THE COMPETITION OF CLAIMS IN GERMANY AND RUSSIA: COMPARATIVE AND LEGAL ANALYSIS

Tokareva A.A.

Abstract

The article provides a comparative legal analysis of the scientific construction of the competition of lawsuits in Germany and Russia. The author traces the process of formation of scientific thought, explaining the reasons for the emergence of competition claims, its essence and methods of resolution. It is noted that the development of the theory of competition of lawsuits is associated with the German pandectics, which served as the basis for the disclosure of the internal content of the phenomenon under consideration. In addition, in Germany, unlike in Russia, attempts were made to secure a mechanism for resolving competition of claims at the level of the law. However, not crowned with success, they only contributed to the transition to a purely doctrinal understanding of the issues of competing claims. In the study of formation of a scientific understanding of the competition of lawsuits in Russia, the author comes to the conclusion: Russian legal theory is characterized by the use of the German concept as a basis. Attention is paid to the superficial study of this problem by Russian civilians, which does not affect its essence. It recognizes the absolute value of the work of German legal scholars, while pointing out the need
for a comprehensive knowledge of the competition of lawsuits as an interdisciplinary category.

Juridical Journal of Samara University. 2019;5(1):131-136
pages 131-136 views

ROLE OF THE CREDITOR IN THE PROCESS OF PERFORMANCE OF OBLIGATION

Gurova E.A., Kryukova P.S.

Abstract

The article considers the performance of a civil-law obligation as a complex process consisting of several stages, in which both parties to the obligation take part. The authors note that the majority of researchers restrict the performance of obligation by the implementation by the debtor of the actions specified by the contract, while the role of the creditor usually remains unheeded. At the same time, the creditor often takes an active part in this process, which is reflected in his so-called creditor’s obligations, which can reveal itself at any stages of performance of the obligation. Such obligations do not change the status of the creditor to the status of the obligated party, since they are additional in relation to the main obligations of the debtor and are aimed at ensuring the proper performance of the latter. It will be noted that creditor’s obligations can be not only in the performance of the obligation, but also precede it, as well as take place after the performance of the obligation.

Juridical Journal of Samara University. 2019;5(1):137-141
pages 137-141 views

Entrepreneurial and economic law

ENTREPRENEURSHIP AXIOLOGY IN CIVIL SOCIETY

Nadezhin N.N.

Abstract

A considerable amount of scientific work is devoted to the various problems of entrepreneurship. However, in legal literature not enough attention is paid to the study of the values of entrepreneurial activity. The author in the article analyzes the various approaches to understanding of an entrepreneurial activity. As a result, the presence of the following values of entrepreneurship is justified: well-being and prosperity of state, civil peace and harmony, freedom of economic activity, independent and risky nature of business activity, responsibility of the entrepreneur for the results of business activities. A study of statutory and regulatory enactments allowed the author to separately distinguish constitutional and sectoral values of entrepreneurship. In addition, the author analyzed the directions of state policy in the field of entrepreneurship. The presence of economic and legal guarantees that can be recognized by means of means of ensuring the value of entrepreneurial activity is shown.

Juridical Journal of Samara University. 2019;5(1):96-102
pages 96-102 views

LEGAL REGULATION OF MEDIATION AND REPRESENTATION AS TYPES OF BUSINESS ACTIVITY

Archakov M.Y.

Abstract

Proceeding from doctrinal and legislative definitions of “entrepreneurial” activity, which are presented in the article, the author carried out the analysis of ratio of the concepts «mediation» and «representation». Based on a wide range of scientific and educational literature analysis, regulation provisions, similarities and differences of the activity types, named above are emphasized in the article as well as these categories relation to business area is defined. The institute of mediation is considered broadly and narrowly in legal and economic terms. The content and types of mediation institute are revealed. The distinctive features of mediation and representation included in the law are shown. Special attention is paid to a current situation with a united approach formation to core business activity understanding.

Juridical Journal of Samara University. 2019;5(1):103-108
pages 103-108 views

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