Vol 6, No 3 (2020)

Full Issue

Theory of law and state

BASIC APPROACHES TO UNDERSTANDING THE SOURCE OF LAW

Spirin M.Y.

Abstract

The author of this article defines three basic approaches of modern theoretical jurisprudence regarding the meaning and content of the category «source of law», analyzes the argumentation of each scientific position, determines its practical significance. Conclusions about the importance of the polysemantic meaning of the category «source of law» for the development of legal science and practice, about the importance of developing a willed approach to the source of law within the framework of the modern willed theory of law-making are made. The author draws attention to the traditional complexity of this issue and to the integrative nature of many modern theoretical legal studies in this area. An important result of the study is the question of whether the content of the category «source of law» contains additional elements that are not given due attention from the point of view of traditional approaches (monistic and pluralistic). It is suggested that the complication of the content and construction of the “source of law” not only will not add additional complexity to the understanding of the corresponding category but will be of great practical importance. The author brings up for discussion the triple-united concept of the formal origin of law and declares the category «morphology of law» for use in modern general and sectoral theory of law.

Juridical Journal of Samara University. 2020;6(3):7-13
pages 7-13 views

PERSPECTIVE OF RESEARCH AND KNOWLEDGE OF RISKS IN LAW

Paulova E.O.

Abstract

The purpose of the article is to analyze the existing points of view regarding the concept and essence of risk in law, highlighting the vector of further prospects for the study of legal risks. To achieve this goal, the opinions of scientists are given in the context of the concept of legal risk, the conditions for the existence of risk in law are identifi ed, and the correlation of legal risk with the principle of justice is carried out. The emphasis is made on the need to apply the principle of justice and legality in the theory of legal risk. This article discusses the problem of a narrow approach to legal risk as a probable and possible occurrence of adverse consequences. It is concluded that legal risk can be assessed as a catalyst for the development and improvement of a particular area of law. This is explained in terms of «soft law», as well as the fl exibility of modern science, striving for multidisciplinarity. In addition, the article analyzes the likelihood of using legal risk, excluding illegal behavior. It also substantiates the need for mutual exchange of experience in the field of research of legal risks with foreign colleagues in order to create a unified and multifaceted concept of legal risk.

Juridical Journal of Samara University. 2020;6(3):14-18
pages 14-18 views

History of law and state

TRIAL OF METROPOLITAN PETER IN THE EYES OF CONTEMPORARIES AND SCRIBES OF THE XVI CENTURY

Gaidenko P.I.

Abstract

The article presented to the attention of readers is devoted to the question of the attitude of the clergy and other contemporaries of the events of the XIV–XVI centuries to the problem of material abuse of bishops. As an example, we consider a set of sources related to the history of the trial of Metropolitan Peter of Moscow, who was accused by the Tver Bishop Andrei of accepting fees for the services and ordinations performed. The main sources of news about those events are hagiographic news published by scribes of the XVI century. in the most important collections of the time in the Great Reading for Months and the Book of Degrees of Thus, these hagiographic texts contributed to the formation of ideas about the rights of the Metropolitan among readers on the example of the history of Peter the Great. Examination of the hagiographic text allows us to conclude that the circumstances of the court described in the life quite accurately record the socio-political situation in which the cathedral was assembled. These texts extremely adequately convey the procedural side of the proceedings. An analysis of the reports allows us to conclude that the accusations against Metropolitan Peter were not unfounded, and the attitude towards the bishop on the part of the Grand Duke and part of the higher clergy remained openly negative. The investigation was conducted by the patriarchal ambassador. There is every reason to believe that the case ended with the reconciliation of the parties. An inquiry into Metropolitan Peter showed that the position of the Metropolitan, supported by the Allies, was stable. Peter not only was able to turn the tide, but later
managed to deal with his opponents. Obviously, the social status of the metropolitan was high and granted the Russian first hierarchs de facto jurisdiction over matters of material abuse.

Juridical Journal of Samara University. 2020;6(3):19-27
pages 19-27 views

Constitutional law

DEMOCRATIC ORGANIZATION OF THE INFORMATION SOCIETY: PUBLIC FUNCTIONALITY OF INFORMATION ACTIVITIES

Volkov V.E.

Abstract

The article deals with the implementation of principles of democratic organization of society and state in the context of development of information relations. The author draws attention to the need to improve the level of protection of fundamental human and civil rights and freedoms in the face of the growing imbalance in the legal possibilities of major technological companies and citizens. The digitization of economy makes it necessary to create additional legal guarantees for the realization of constitutional human rights and to place on the strong side of contractual relations the obligations arising from its public function.

Juridical Journal of Samara University. 2020;6(3):28-31
pages 28-31 views

Family and housing law

ABOUT THE DEFINING OF PARTICULAR FAMILY LEGAL TERMS

Andryiashka M.V.

Abstract

The article analyzes the key family legal terms «family», «close relatives», «family members», «in-laws», «former family member», «relatives», legally defined by codified normative legal acts. The importance of defi ning these terms is determined due to the fact that the national marriage and family legislation is faced with the task of strengthening the family as a natural and basic unit of society. In the study, a number of conclusions were made and there was made a conclusion that a number of family legal terms need to be corrected. Arguments are given in favor of stating in the new edition of Article 60 of the Code of the Republic of Belarus on Marriage and Family, devoted to the issues of determining subjects that are in close relationship. It is concluded that it is inappropriate to avoid mentioning de facto marital relations in the Marriage and Family Code, while Civil Procedure Code directly mentions them. Using the techniques of comparative studies, the author independently developed a table that refl ects the content of the terms «relatives», «close relatives», «family members», «in-laws», «former family members», and some others which are
defined out in codified legal sources of the Republic of Belarus.

Juridical Journal of Samara University. 2020;6(3):32-39
pages 32-39 views

Civil process

NOVELTIES OF THE CIVIL PROCEDURE CODE OF THE RUSSIAN FEDERATION AND THE ARBITRATION PROCEDURAL CODE OF THE RUSSIAN FEDERATION CONCERNING REFUSAL OF JURISDICTION

Agalarova M.A.

Abstract

In this article, the author touches upon the recent changes made by the Federal Law dated 28.11.2018 № 451-FZ «On amendments to certain legislative acts of the Russian Federation» related to the rejection of the term «jurisdiction». The reasons for such changes, as well as positive and negative features of the replacement of «jurisdiction» by «competence» are investigated. The author analyzes the legal meaning of each concept – «jurisdiction» and «competence». The problem of impact of such changes on the «international jurisdiction», which arises in the course of consideration and resolution of civil cases involving foreign persons in civil and arbitration processes, is noted.

Juridical Journal of Samara University. 2020;6(3):40-45
pages 40-45 views

Criminal law

ON THE LEGISLATIVE CONSTRUCTION OF TERRORIST CRIMES IN THE SPECIAL PART OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION (ON THE EXAMPLE OF ARTICLES 205–205.6 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION)

Golenko D.V.

Abstract

The article discusses current trends characteristic of the Russian criminal law and the practice of its application in the fi eld of combating terrorism. The acts provided for in Chapter 24 of the Criminal Code of the Russian Federation (Articles 205–205.6 of the Criminal Code of the Russian Federation) are analyzed in detail from the point of view of the location of the legislative material, as well as the structures of the elements of the crimes. Special attention is paid to the structure of Articles 205–205.6 of the Criminal Code of the Russian Federation (dispositions, sanctions, notes). The types of structures of terrorist crimes at the time of completion are considered. The article analyzes the current practice of applying this Articles of the Criminal Code of the Russian Federation, as well as offi cially published judicial statistics. The study allowed us to identify existing contradictions within the criminal law and formulate some recommendations for improving legislation in the field of combating terrorism.

Juridical Journal of Samara University. 2020;6(3):46-52
pages 46-52 views

DETERMINANTS OF LATENT CRIMES COMMITTED USING INFORMATION AND COMMUNICATIONS TECHNOLOGIES

Boyko O.A., Unukovich A.S.

Abstract

In 2019, 294 409 criminal assaults were registered in the Russian Federation, committed using information and communications technologies, of which only 65 238 acts were disclosed. In addition, a certain part of crimes in the information and telecommunications space remains out of sight of law enforcement agencies-latent. The authors of the article have formulated the concepts of crime in the information and communications space and latent criminal acts committed using information and communications technologies. The article analyzes the determinants of latency of
crimes carried out using it. The conclusion is formulated that it is necessary to purposefully influence the determinants of latent crime committed using ICT, which makes it possible to remove a certain part of illegal encroachments from the «shadow».

Juridical Journal of Samara University. 2020;6(3):53-59
pages 53-59 views

ABOUT THE CONSENT OF A PERSON TO MAKE HARM TO HIM UNDER MEDICAL INTERVENTION FOR THE PURPOSE OF EXCLUDING CRIMINALITY OF THE ACT

Askov N.N.

Abstract

The article is devoted to the consent of a person to harm him as a possible circumstance, excluding the criminality of an act in medical activity. The signs of the legitimacy of a person’s consent to medical intervention are analyzed, a criminal-law assessment of medical intervention is given, a version of Chapter 8 of the Criminal Code of the Russian Federation is proposed by adding Article 42.1 «Causing harm to a person with his consent».

Juridical Journal of Samara University. 2020;6(3):60-65
pages 60-65 views

CRIMINALIZATION OF OFFENSES IN THE SPHERE OF BUSINESS ACTIVITY: PROBLEMS OF LEGISLATION AND LAW ENFORCEMENT PRACTICE

Dorozhkin I.O.

Abstract

The most important reason for the criminalization (decriminalization) of acts is their social danger, but this criterion often raises many questions, especially when it comes to offenses in the field of business. One of the key problems here is the constant fluctuation between the mitigation or tightening of criminal law impact on this sphere of public relations. At the same time, its decision is largely politically motivated, being rather the result of the confrontation between the state and business, rather than a scientifically based approach to determining ways to maintain a balance of public and private interests. Often, individual novels are brought to life by high-profile cases of violation of the rights and legitimate interests of citizens. All this leads to the implementation of an insufficiently thought-out approach to the reform of criminal legislation. In order to assess the practice of criminalization of acts in the sphere of business activity, the authors analyzed the novelties of the current legislation in terms of establishing liability for violation of the established procedure for carrying out business activities in terms of their effectiveness and compliance with legal technology. It is concluded that there is a need for a more restrained assessment of proposals to liberalize criminal liability for economic crimes, while simultaneously reviewing the composition of crimes for decriminalization, the negative consequences of which can be prevented or leveled by other organizational and legal means.

Juridical Journal of Samara University. 2020;6(3):66-71
pages 66-71 views

Criminal and penal law

CRIMINAL LEGISLATION OF THE REPUBLIC OF KOREA, THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA AND RUSSIA: COMPARATIVE LEGAL ANALYSIS OF TYPES OF PUNISHMENTS AND THEIR CONTENT

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

Abstract

The types of punishments in the Republic of Korea and the Democratic people’s Republic of Korea have significant specifics in comparison with Russia and differ from each other. Their criminal law regulations are laconic in comparison with the Russian approach. Under the Criminal Code of the Democratic People’s Republic of Korea, there is a clear emphasis on regulating punishments involving deprivation of liberty and restriction of the rights of a convicted person, and under the Criminal Code of the Republic of Korea, punishments with economic content. The author provides a translation of the provisions of Article 27 of the Criminal Code of the Democratic People’s Republic of Korea and Article 41 of the Criminal Code of the Republic of Korea regarding the list of types of punishments.

Juridical Journal of Samara University. 2020;6(3):72-77
pages 72-77 views

PROBLEMS OF LEGAL REGULATION AND LAW ENFORCEMENT PRACTICE OF THE INTRODUCTION OF THE REGIME OF SPECIAL CONDITIONS IN THE CORRRECTIONAL SYSTEM FACILITIES OF RUSSIA

Gorban D.V., Efremova O.S.

Abstract

In the practical activities of institutions and bodies of the criminal executive system, situations arise in which their normal life activity may be temporarily interrupted, and they move into the so-called «special» order of functioning. Such situations include: natural disasters; mass riots of convicts; accidents; introduction of a state of emergency or martial law; group disobedience of convicts; capture and release of hostages on the territory of the correctional institution; search and detention of convicts who escaped from the correctional institution; fires. In case of occurrence of these emergency situations the operational situation in correctional institutions sharply becomes complicated. And in this regard, according to the legislation, the above circumstances may become grounds for the introduction of special conditions in correctional institutions, as well as jail. The study of problematic issues of the introduction of the regime of special conditions is quite relevant for modern penitentiary science. In the presented article the attempt of complex consideration of practical questions of introduction in establishments of penal system of a mode of special conditions is made. In addition to the grounds fi xed in the law for the introduction of the regime of special conditions, the author proposed other grounds, as well as made proposals to improve the current criminal executive legislation.

Juridical Journal of Samara University. 2020;6(3):78-83
pages 78-83 views

Criminal procedure

CRIMINAL PROCESS IN A PANDEMIC AND THEN

Lazareva V.A.

Abstract

Due to the emergence of a new coronavirus infection (COVID-19), measures aimed at limiting its spread have made it impossible to administer justice in compliance with its democratic principles, implying the possibility of personal participation of all interested parties in court procedures to effectively defend their interests. In this regard, on April 8, 2020, the Presidium of the Supreme Court of the Russian Federation adopted a decree recommending that the courts, among other measures, intensify the work of Internet receptions, ensure the reception, processing and registration of documents submitted to the courts in electronic form, including in the form of an electronic document, consider cases and materials of urgent nature in court hearings using the video-conferencing system and (or) the web-conference system. Despite the fact that in accordance with the program for the development of the Russian judicial system, approved by Decree of the Government of the Russian Federation dated December 27, 2012 № 1406, the modernization of the work of courts based on digital technologies has already begun in the country, their development in criminal proceedings lags behind other methods of administering justice. Given this circumstance, as well as the actual absence in the criminal process of electronic document management and legal regulation of the grounds and procedure for conducting a trial in the mode of a web conference, the article attempts to determine the limits of the possibilities of using new technologies in criminal proceedings, to substantiate the conclusion that that the use of digital technology in criminal proceedings is not only possible, but necessary, as well as to determine the direction of development of criminal proceedings in this direction.

Juridical Journal of Samara University. 2020;6(3):84-90
pages 84-90 views

GATHERING EVIDENCE AS A «FIRST» STAGE OF PROVING IN A CRIMINAL CASE

Rossinskiy S.B.

Abstract

In the article, the author continues to study the structure of evidence in a criminal case. The author makes a number of arguments that allow us to reconsider the previous point of view that the concept of «collecting evidence» and the concept of «forming evidence» are two autonomous methods of the fi rst stage of proof. Instead, the author proposes to consider the category of «gathering evidence» conditional. It should be understood as any forms of actions of subjects of criminal proceedings that are aimed at obtaining and further legalizing useful information.

Juridical Journal of Samara University. 2020;6(3):91-103
pages 91-103 views

PROHIBITION ON REFUSAL OF THE ATTORNEY ON THE ADVOCATE PROTECTION ESTABLISHED BY PART 7 OF ARTICLE 49 OF THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION: PROBLEMS OF LAW ENFORCEMENT

Rudich V.V.

Abstract

The article discusses the question of whether the norms of part 7 of Article 49 of the Code of Criminal Procedure of the Russian Federation with an absolute prohibition on the refusal of the defender to defend the interests of the suspect, accused, defendant. The analysis of legal norms, which refutes the position of the absolute prohibition established by part 7 of Article 49 of the Criminal Procedure Code of the Russian Federation. A number of exceptions are justified, in which the refusal of the defense counsel from the assumed defense is legitimate. The article draws conclusions and gives recommendations aimed at eliminating the unjustified bringing of lawyers to administrative responsibility by the chambers of law.

Juridical Journal of Samara University. 2020;6(3):104-116
pages 104-116 views

Criminalistics and forensic enquiry

FORENSIC STRUCTURE OF THE CRIME INVESTIGATION MECHANISM

Permyakov A.L.

Abstract

The article presents the typical structure of the investigation mechanism developed by the author on the basis of an analysis of the activities of investigators and other persons involved in the investigation of crimes. Author's explanations are given for the elements of the presented design. The model presented provides an opportunity to consider the relationship of the crime investigation mechanism to the mechanism of its commission. The research results presented in the article should allow for a new look at some aspects of the object of research in the field of forensic science.

Juridical Journal of Samara University. 2020;6(3):117-121
pages 117-121 views

PECULIARITIES OF INITIATION OF CRIMINAL PROCEEDINGS ON THE GROUNDS OF THE CRIME PROVIDED FOR IN ARTICLE 193 OF THE CRIMINAL CODE OF THE RUSSIAN FEDERATION

Gvozdarev R.A.

Abstract

The article presents the author's analysis on the basis of the analysis of the activities of investigators and other persons involved in the investigation of crimes algorithm of actions when reporting the crime provided by Article 193 of the Criminal Code of the Russian Federation, both at the stage before the initiation of a criminal case, and after its initiation. Author's explanations are given on the grounds, reasons and grounds for the detection by the operational units of the crime related to violations of the rules of repatriation of funds. A typical list of activities that need to be carried out by the investigator during the verification of the report of a crime, established at the stage of criminal proceedings, is presented. The findings of the paper should allow a new perspective on some aspects of the forensics research facility.

Juridical Journal of Samara University. 2020;6(3):122-127
pages 122-127 views

ON THE USE OF DIGITAL LOGISTICS IN CRIMINAL PROCEEDINGS AND CRIMINALISTICS

Christinina E.V.

Abstract

The scientific article explores the concept and content of digital forensic logistics. The author substantiates the close relationship of digital forensic logistics with the process of organizing criminal investigations, building forensic versions, planning investigative actions and operational search activities. The author presents several areas of forensic logistics: logistics of evidence in criminal cases; logistics of the overall organization of the investigation of crimes; logistics of planning (selection of means and methods of investigation); logistics of putting forward versions; logistics of decisions made in criminal cases. The article makes a logical conclusion that the entire process of criminal investigation is carried out using a single digital logistics platform that includes algorithmization of actions and decisions in a criminal case. The author has established that the digital platform is based on various information flows, which are: digital forensic records; digital traces; electronic requests and instructions; digital video library, audio recording and photography; electronic assistant to the investigator; digital expertise; electronic forensic recommendations for the investigation of criminal cases. In conclusion, it is concluded that it is necessary to use digital logistics in criminal proceedings and criminalistics to improve the efficiency of investigative bodies in the investigation of criminal crimes.

Juridical Journal of Samara University. 2020;6(3):128-132
pages 128-132 views

Tribune of young scientist

ABSENTEEISM IN MUNICIPAL ELECTIONS IN THE RUSSIAN FEDERATION

Khubaeva D.F.

Abstract

The article examines the main subjective and objective causes of absenteeism at the local level. The author emphasizes that the local level of public power is the most accessible, understandable and close to the majority of the population. And it is on this basis that the use of institutions of direct democracy allows us to overcome the alienation of citizens from power. Based on the analysis of current trends in the legal regulation of the electoral process, namely, legislation on the formation of local self-government bodies, the author comes to the conclusion that these regulations contradict the goals of local self-government, one of which is to bring the local government closer to the population. The question is raised about the relationship of turnout indicators to legitimacy. The paper examines the specific reasons for citizens ' reluctance to participate in elections and considers possible ways to overcome them. Much attention is paid to the need to introduce innovative voting technologies.

Juridical Journal of Samara University. 2020;6(3):133-138
pages 133-138 views

VIOLATION OF THE FREEDOM-OF-CONTRACT DOCTRINE IN THE LIFE AND HEALTH INSURANCE CONTRACT

Masolkin M.D.

Abstract

In this article the author investigates the issue of violation of the principle of freedom of life and health insurance contract. The Institute of insurance is of great interest for legal science, as the need for life and health insurance is constantly growing, and therefore the author pays attention to the life and health insurance contract itself, namely the essential conditions and its elements. The article analyzes some of the most important questions about the principle of freedom of civil contract in general and the contract of life and health insurance in particular. The purpose of the article is to improve the modern legal regulation of personal insurance in the Russian Federation, as well as the study of judicial practice on life and health insurance, which determines the relevance and practical significance of this research. In addition, in this scientific article the author gives various scientific opinions on the principle of freedom of contract. On the basis of the conducted research for the resolution of legal problems in the field of personal insurance, the author of the article proposes to pay attention to the principle of freedom of contract when concluding a life and health insurance contract. The paper uses general scientific and special methods: analysis, synthesis, abstraction, induction, deduction, logical method and comparative legal method. The results of this study can be used in educational, scientific, forensic and other activities.

Juridical Journal of Samara University. 2020;6(3):139-143
pages 139-143 views

FEATURES OF CONCEALING PERSONAL DATA OF CRIMINAL PROCESS PARTICIPATORS ON THE STAGE OF PRELIMINARY INVESTIGATION

Svechnikova E.I.

Abstract

This article deals with the features of application of security measure (Part 9 Article 166 of the Criminal Procedure Code of the Russian Federation) to witnesses and victims on the stage of preliminary investigation. The author underlines the importance of depersonalization of texts with witnesses’ testimony in order to prevent the possibility of their identification. The author discusses the possibility of concealing of defence witness personal data and raises some legal and practical problems of victim’s data concealing. With regard to wide spread of misuses, the author suggests to get the court permission of concealing witnesses’ and victims’ personal data. The article contains the procedure of giving a pseudonym as well as recommendations of its constructing and foreign experience of its choosing. Moreover, the paper emphasizes the practical problems of creating and keeping of resolution about concealing of witnesses’ or victims’ data. The author gives a review of researchers’ suggestions about creating conditions to prevent opening of an envelope with the resolution by third parties and proposes the optimal order of its using, keeping and transmitting. The article is based on the material from theses, monographs and scientific papers as well as on investigators’ survey and judicial practice.

Juridical Journal of Samara University. 2020;6(3):144-149
pages 144-149 views

IMPLEMENTATION OF THE PRINCIPLE OF LEGALITY IN CRIMINAL PROCEEDINGS IN THE CONTEXT OF APPLICATION OF MEDIATION PROCEDURES

Tarsheva M.N.

Abstract

This article deals with the implementation of the principle of legality in the conduct of the case, in relation to the mediation procedure, which at the moment has not found its reclaim in either the criminal or criminal procedure law, however, it can be argued that all the necessary prerequisites and resources for the implementation of the institution are available. The article substantiates the conclusion that a harmonious combination of the principles of legality and expediency will contribute to the improvement of criminal proceedings in general, and in particular alternative forms of resolution of criminal-right conflict, including mediation, as well as to conform to the ideas of optimization, rationalization and humanization of the criminal process.

Juridical Journal of Samara University. 2020;6(3):150-153
pages 150-153 views

REMOTE INTERACTION WITH THE JUDICIARY IN A PANDEMIC: OPPORTUNITIES AND PERSPECTIVES

Lebedev Z.S.

Abstract

The article is devoted to the problem of implementing forms of remote interaction with the judicial system. The article also considers the possibility of functioning of the judicial system in the current unfavourable epidemiological situation and quarantine measures being carried out in the country. The author analyzes the problems and prospects of remote interaction of the court with the participants in the process, as well as the problems of their application in conditions of insufficient legal regulation. There are 3 main forms of remote interaction with courts: submission of documents, which is more focused on professional participants in the process; familiarization with the materials of the case, which is implemented electronically only in the arbitration process and only in cases considered in summary proceedings; remote participation in the consideration of a case, which at the moment is practically not implemented due to the lack of proper legal regulation. A comparative analysis of foreign judicial practice and legal norms governing remote interaction with judicial authorities with the established practice of the judicial system of the Russian Federation was carried out. In conclusion, the author concluded the study.

Juridical Journal of Samara University. 2020;6(3):154-160
pages 154-160 views

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