Vol 5, No 1 (2019)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.