Vol 6, No 4 (2020)

Full Issue

Events
THE LAW INSTITUTE OF SAMARA UNIVERSITY IS 50 YEARS OLD!
Bezverkhov A.G.
Abstract

В 2020 году Юридическому институту Самарского университета (ранее – юридическому факультету Куйбышевского государственного университета, Самарского государственного университета, Самарского национального исследовательского университета имени академика С.П. Королева) исполнилось пятьдесят лет. Миссия Юридического института состоит в подготовке высокообразованных, конкурентоспособных специалистов в области права с фундаментальными правовыми знаниями, высокой культурой и нравственностью, способных понимать сущность и социальную значимость своей профессии, обладающих глубоким уважением к закону, ценностям правового государства, профессиональной этикой, чувством долга и ответственностью за судьбы людей, обеспечивающими решение приоритетных задач социально-экономического, политического и культурного развития Самарского региона и Российской Федерации (в соответствии с существующими и перспективными потребностями российского общества и государства), а также в формировании и развитии в Самарском регионе научно-образовательного, инновационно-технологического и культурного центра права.

Juridical Journal of Samara University. 2020;6(4):7-16
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Theory of law and state
KRITARCHY AS A SPECIAL FORM OF STATE (ON THE EXAMPLE OF SOMALIA)
Makutchev А.V.
Abstract

The article analyzes the characteristic features of kritarchy – a specific structure of society based on the power of the courts. Experts consider kritarchy primarily as a social or legal system, and some consider it a political regime. The author of the article attempted to study kritarchy as a form of state, a set of political and legal components (methods of organization of higher authorities, territorial structure of power, ways of its implementation) that can replace the usual forms of state in traditional societies. Kritarchy is considered a historical form of social and state structure that is not found today. Nevertheless, Somalia from the late 1980-ies to the present day, according to the author, is a modern example of kritarchy. In a weak, «failed state», Somali society returned to a traditional way of life that created the basis for kritarchy. The author analyzes the courts as a substitute for the standard system of government, Somali law (a synthesis of customary and Islamic law) as an analog of standard legal systems, it demonstrates the viability of kritarchy as a form of state in the absence of traditions of usual forms of state in society.

Juridical Journal of Samara University. 2020;6(4):17-25
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History of law and state
ROLE OF THE REFORMS OF THE 1550-IES AS INSTITUTIONAL ANTI-CORRUPTION MEASURES
Fomenko R.V.
Abstract

The article considers the prerequisites for the implementation, nature and significance of institutional measures to counter corruption at the local government level in Russia during the reforms of the 50-ies of the XVI century. The problems of evolutionary development or deliberated formation of new ways of combining public and private interests at the local level, interchangeability and complementarity of different forms of state administration, regional and local self-government are put. The article shows that in the search for ways to counteract abuse by vicegerent, the Central government gives wide powers to the bodies of local self-government. But the state will be able to completely abandon the vicegerent system only by the beginning of the XVII century. In turn, corruption costs were also evident in the activities of local authorities, which forces the state to create additional internal institutional mechanisms, and to impose anti-corruption expectations on new bureaucratic bodies – voivodes, which were becoming a local continuation of the prikaz system.

Juridical Journal of Samara University. 2020;6(4):26-32
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Civil law
DIGITAL DESIGN OBJECTS: FEATURES OF LEGAL REGULATION
Rakhmatulina R.S.
Abstract

The article is devoted to digital design objects. The author analyzes the features of design objects, examines the influence of digital technologies on the creation of design objects. It is suggested to enter the sign of originality for design objects as for works of art. Digital technologies give an impulse and a different meaning to design objects. The designer combines various types of technologies using digital technology. Thus, the originality of the design product will consist of different components: user perception of the object, convenience, fashion, design of creative use and processing of information, and other interesting and convenient elements. Objects created by artifi cial intelligence technology are becoming popular in design. For objects created by artificial intelligence technology, the criterion of originality will be questioned, since in foreign practice (USA, England), the criterion of originality carries the author's personality, but the novelty can be easily determined by the machine. Hence, it is proposed to grant the author of the software product the exclusive right to the object created by the machine.

Juridical Journal of Samara University. 2020;6(4):33-37
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Labour law and social security law
ON CERTAIN PROBLEMS OF CONFERMENT OF THE TITLE «LABOR VETERAN»: ANALYSIS OF LEGISLATION AND LAW ENFORCEMENT PRACTICE
Elaev A.A.
Abstract

The right to free work and choice of activity is enshrined in the Constitution of the Russian Federation. At the same time, ensuring and protecting the labor rights of citizens is one of the main categories of the rule of law. The legislation of the Russian Federation regulating labor relations is aimed at encouraging a conscientious attitude to work for a long time, and one of these types of encouragement is the title «Veteran of labor». However, in practice, quite often there are certain difficulties that arise due to departmental and regional rulemaking. The article attempts to analyze the current situation based on judicial practice.

Juridical Journal of Samara University. 2020;6(4):38-42
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Criminal law
JUSTICE IN CRIMINAL LAW: MATERIAL OR IDEAL CATEGORY?
Konovalchuk M.V.
Abstract

The article examines the criminal law principle of justice from the point of view of traditional philosophical thought, which assumes the division of the world into an ideal and material substance. As an example of the ideal substance of justice, the author suggests considering the moral world order, a particular manifestation of which should ideally be the constitutional system of a particular state. The material substance of justice, in the author's opinion, should be clearly refl ected in the norms of the criminal law. As a theoretical premise of the stated approach, the assumption is put forward that a person as a personal Creator and performer of law, passing through the idea of justice as a fundamental socio-philosophical, political and legal phenomenon, formulates the criminal law principle of justice. This approach plays an important methodological role in overcoming one-sided trends in the consideration of its nature and assumes its construction on the basis of a two-level structure that includes legislative and law enforcement elements. On the basis of the position put forward by the famous philosopher Thomas Aquinas on the requirements imposed on the law, analyzes the judicial practice and norms of the current criminal law for its compliance with the principle of justice. The thesis that its effective implementation is an indicator of the quality of the criminal law is substantiated.

Juridical Journal of Samara University. 2020;6(4):43-46
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EPISTEMOLOGICAL CHALLENGE TO CRIMINAL LAW IN THE ASPECT OF SYSTEMATIZATION OF FORMS OF FRAUD IN SPORTS
Khodusov A.A.
Abstract

The epistemological challenge to criminal law in the aspect of systematization of forms of fraud in sports is due to its multi-modality, multi-object and cross-border nature. In this article, the criminological boundaries of the problem field are formed and clear initial legal orientations of criminological and model significance are outlined, on the basis of which it is possible to build tactics for countering crime in the sports sphere. For the first time, we systematize criminal phenomena in the sphere of physical culture and sports that are reproduced directly in the activities of subjects (including managerial ones) and have the effect of obstructing and simulating the meanings, functions, and social significance of sports, as well as legal epiphenomena that are reproduced in connection with the functioning of sports and / or the exploited benefits generated by this sphere.

Juridical Journal of Samara University. 2020;6(4):47-51
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Criminal and penal law
CRIMINAL PUNISHMENT IN THE FORM OF ARREST: PROBLEMS AND PROSPECTS
Teokharov A.K., Chestnov A.V.
Abstract

The article analyzes domestic and foreign criminal legislation regulating the execution of punishment in the form of arrest. Scientific points of view regarding the issues of regulation and execution of arrest in Russia are evaluated. Modern problems of execution of arrest are defined and ways of their solution are offered. The author's position on the essence of the arrest and its distinctive features is given. The authors conclude that in modern Russia, one of the important aspects that contribute to the formation of the system of punishments is the internal and external economic conditions. It is argued that it is impractical to exclude arrest from the system of criminal penalties. The conclusion is made that the arrest is not executed, as it goes against the modern penal policy. Separate amendments to the criminal and penal enforcement legislation are proposed. It is argued that in modern conditions it is necessary to provide for the execution of punishment in the form of arrest in pre-trial detention centers.

Juridical Journal of Samara University. 2020;6(4):52-60
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Criminal procedure
INTERNATIONAL HUMAN RIGHTS STANDARDS AND RUSSIAN CRIMINAL JUSTICE
Tarasov A.A.
Abstract

The novelty lies in the author's assessment of the impact of international human rights standards and a fair trial procedure not only on the criminal justice itself, but also on the entire system of relations between the state and the individual, as well as in a critical analysis of clauses found in the literature on possible restrictions on the application of the European Court's practice on human rights in Russia. The aim of the work is to substantiate the unconditionally positive influence of international human rights and justice standards on the Russian criminal justice system and the relationship between the state, the individual and society. The objective is to demonstrate, using examples from the literature and practice of the European Court of Human Rights, the undoubtedly positive impact of the application in Russia of the European Convention for the Protection of Human Rights and Fundamental Freedoms and decisions of the European Court of Human Rights on Russian criminal justice and on all practical jurisprudence in Russia. The article uses the methods of system analysis and synthesis, comparative legal and historical methods. As a result, the author's conclusions about the inadmissibility and inappropriateness of limiting the operation on the territory of Russia of international human rights standards and fair trial procedures expressed in the European Convention and court decisions of the European Court have been substantiated. In conclusion, these brief conclusions are formulated.

Juridical Journal of Samara University. 2020;6(4):61-66
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ON CRIMINAL PROCEDURE LAW-MAKING IN THE MODERN CONTEXT
Belonosov V.O.
Abstract

The article analyzes the changes made to the CPC in 2019 and the first half of 2020. It is concluded that despite a significant reduction in overactive legislative drafting since 2019, the quality of the changes made leaves much to be desired. Unjustified repetition of general provisions without any novelty continues to occur. Substantive issues are the subject of regulation, while the subjects are persons who do not perform procedural functions. The amendments ignored citizens' rights and freedoms, were adopted in the interests of law enforcement agencies and were formal and bureaucratic in nature. All this does not contribute to the stability of legislation and respect for the law, distorting the meaning of legality. Under these conditions, it is proposed to return to a legal understanding of the law, to revive moral and ethical principles of criminal procedure, to resume and intensify discussions on the protection of individual rights and freedoms in criminal proceedings.

Juridical Journal of Samara University. 2020;6(4):67-71
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PROPORTIONALITY OF PROCEDURAL RESTRICTIONS TO THE THREATENED PUNISHMENT AND ECONOMY OF COERCION WHEN CHOOSING A MEASURE OF RESTRAINT
Muravev K.V.
Abstract

The article draws attention to the fact that the Criminal Procedure Code of the Russian Federation provides for uniform grounds for applying preventive measures, and the circumstances taken into account do not contain clear selection criteria. This implies the discretion of the competent persons when making a procedural decision, and, ultimately, allows you to raise the question of «fairness of preventive measures». The author points out that the choice of a fair measure of restraint is preceded by the identification of the limits of coercion that meet the requirement of «proportionality of procedural restrictions to the threatened punishment». The material and legal conditions for applying certain preventive measures are analyzed. It is concluded that the decision on the measure of influence should be made taking into account the requirement of «economy of compulsion», which should not be absolutized.

Juridical Journal of Samara University. 2020;6(4):72-79
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SPECIAL PROCEDURE OF TRIAL IN CASE OF CONSENT OF THE ACCUSED WITH THE CHARGE BROUGHT: THE CONSEQUENCES OF THE AMENDMENT TO THE LAW
Kuvaldina J.V.
Abstract

The article makes assumptions about the possible consequences of changes made by the Federal Law as of July 20, 2020, No. 224-FZ in edition of the Part 1 of Article 314 of the Criminal Procedure Code of the Russian Federation. According to this amendment, criminal cases on grave crimes will now be considered in the general order, unless a pre-trial cooperation agreement is concluded with the accused. The relevance of this novel is due to the fact that the legislator has once again revised the approach to defining the criteria for simplifying the criminal procedural form. In this regard, practice in the near future may face new or, more precisely, well forgotten old problems related to the period of the beginning of the judicial reform in 1991. A number of issues related to ensuring the right of the accused to a special order of trial will require scientific understanding. The author analyzes foreign legislation, previously and current domestic criminal procedure legislation, opinions on this issue of representatives of the highest levels of the judicial system, prosecutor's office and the legal profession, scientists, statistical data and reviews of the activities of courts of general jurisdiction in criminal cases in 2019. The author comes to the conclusion that in Russia the possibility of applying a simplified procedure associated with the reduction or refusal of the judicial investigation was not directly dependent on the severity of the crime committed, and the reform of the special procedure for judicial proceedings undertaken by the legislator is untimely and is not provided with either personnel or material technical or financial resources. According to the author, the decrease in the number of sentences passed in a special order will occur due to the infringement of the right of those accused of serious crimes to be tried in the procedure provided for in Chapter 40 of the Criminal Procedure Code of the Russian Federation. In this regard, the article outlines the directions for the further development of a special procedure for judicial proceedings, strengthening its consensual nature and ensuring the guarantees of the rights of the accused and victims in this procedure.

Juridical Journal of Samara University. 2020;6(4):80-87
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DIFFERENCES IN THE IMPLEMENTATION OF THE GENERAL LEGAL MODEL FOR REVIEWING JUDICIAL ACTS IN CRIMINAL AND ARBITRATION, CIVIL AND ADMINISTRATIVE PROCEEDINGS
Sharipova A.R.
Abstract

The novelty of the article is determined by the comparative analysis of the institutions of appeal, cassation and supervisory review of cases in various branches of judicial law. The purpose of this analysis is to identify general trends in the regulation of the right of appeal, appeal of interim judicial acts, the terms of appeal, the procedure for consideration and powers of the court in verification instances, the grounds for revoking judicial acts in criminal, arbitration, civil and administrative proceedings. The task was to identify unjustified differences between similar rules of procedural branches and choose the best version of regulatory regulation. The article uses methods of system analysis and synthesis, comparative legal method. As a result of the study, the unified legal model of reviews for all procedural branches was confirmed, and shortcomings of its implementation in criminal proceedings were established. In conclusion, there is evidence that the identified shortcomings significantly reduce the overall quality of justice in criminal case reviews in comparison with their counterparts in other branches of law.

Juridical Journal of Samara University. 2020;6(4):88-95
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INFLUENCE OF FAMILY AND KINSHIP RELATIONS ON THE IMPLEMENTATION OF CERTAIN INSTITUTIONS OF CRIMINAL PROCEDURE LAW: PROBLEM STATEMENT
Shestakova L.A.
Abstract

The author of the article establishes the mutual influence of criminal proceedings, the interests of the family, minors, morality, political, religious, corporate and other social norms. The norms of criminal procedure law regulate a wide mound of public relations. These relations often have no connection with the criminal procedure form. Social norms often have a regulatory role in the sphere of criminal procedural relations. The Russian legislator does not take this circumstance into account. The law has lost its connection with other socio-cultural systems (morality, religion). Family relations signifi cantly change the content of all stages of the criminal process. Value and moral attitudes affect the legal position of participants in criminal proceedings. The state musts to accept the opinion of the Russian population about justice and morality. This opinion of the people should be consolidated in the Criminal Procedure Code. There is not a legislative mechanism to implement this idea. This circumstance interferes with the accounting of family relations in criminal procedure law.

Juridical Journal of Samara University. 2020;6(4):96-100
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Criminalistics and forensic enquiry
REASONABLE TIME OF CRIMINAL PROCEEDINGS: CRIMINALISTIC CHARACTER
Korsakov K.A., Konin V.V., Sidorenko E.V.
Abstract

In the Russian legal system, the understanding that justice should be not only timely, but also fast enough has matured for a long time. The delay in the investigation of a criminal case and its consideration by the court allows the guilty to avoid the deserved punishment in some cases, which calls into question the principle of inevitability of punishment on the one hand, and hinders the right to access justice, on the other hand. The term «reasonable time for legal proceedings» has emerged as a requirement of international law to be tried without undue delay. The right to a reasonable period of criminal proceedings is regulated by Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but this norm is not fully implemented to date, as evidenced by the decisions of the European court of human rights issued on complaints of violation by the Russian Federation of the provisions of the European Convention for the protection of human rights and fundamental freedoms. At the same time, the available research considers the requirement of reasonable terms in criminal proceedings from the standpoint of criminal procedure law, which is not fully justified. The article attempts to consider the problematic issues of reasonable terms of criminal proceedings from the perspective of criminology, as a science that has incorporated theoretical and practical issues of fighting crime, as well as the problems of criminalistic criteria in criminal proceedings.

Juridical Journal of Samara University. 2020;6(4):101-111
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TACTICAL TECHNIQUE: DEFINITION LOGIC NEEDS REVISION
Sokolov A.B.
Abstract

To understand the essence of the phenomenon under study allows the appropriate and correct use of concepts. Today we can meet cases when an erroneous understanding of the meaning of the terms used leads to a false interpretation of their meaning. We believe that a similar situation develops in forensics when studying the concept of «tactical technique». In the article, based on the analysis of the opinions of forensic scientists, the definitions and signs of a tactical technique presented in the science of forensic science are investigated. The conclusion is drawn about their ambiguity. The author's understanding of a tactical technique is presented, indicating its essential features: 1) mode of action, 2) compliance with certain criteria of admissibility. The article describes the content component of each of these signs. An analysis of the positions of forensic scientists is given, on the basis of which it is concluded that the criteria for the admissibility of a tactical technique should include scientific validity and predictable effectiveness. Indicators of the predicted effectiveness of tactical reception are determined. It is concluded that legality and ethics should be considered as a fundamental idea, guiding principles, extending to the activities of the law enforcement officer as a whole. The criteria for the admissibility of a tactical technique should be understood and studied as a particular manifestation of this activity, which is subject to the general principles of conducting a preliminary investigation. It is stated that the essential features of a tactical technique and its acceptance criteria are not the same thing. The terms «criteria of admissibility of tactical technique» and «criteria of admissibility of using tactical technique» are related. Considering that they are one and the same, it is concluded that there is no expediency of using the term «criterion of admissibility of the use of a tactical technique» in forensic science.

Juridical Journal of Samara University. 2020;6(4):112-119
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SOME ASPECTS OF FORENSIC MEDICAL EXAMINATION IN CASES OF IMPROPER PERFORMANCE OF PROFESSIONAL DUTIES BY MEDICAL PROFESSIONALS
Sergeeva O.V., Zinenko Y.V.
Abstract

In the article, the authors address the problem of improper provision of medical care by medical professionals. The authors highlight the issues of conducting forensic medical examination in cases where medical care is provided improperly. The concept and an approximate list of objects to be considered by the expert commission in cases of improper medical care is given. The stages of conducting a forensic medical examination for this type of crime are described. The article highlights the most important points in the appointment of such examinations.

Juridical Journal of Samara University. 2020;6(4):120-125
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PECULIARITIES OF INVESTIGATION OF CRIMINAL CASES ASSOCIATED WITH ARSONS
Karpov S.Y., Sadovsky V.V.
Abstract

The article discusses some of the features of the investigation of criminal cases involving arson. Recommendations are given for the officers of the investigative-operational groups when planning further actions at the initial stage of the investigation of arson. The questions about the influence on the detection rate of the promptness of arrival to the place of the fire of the investigator (interrogator), about the features of collecting information at the place of the fire are touched upon. Obtaining information on the basis of special knowledge, allowing to formulate a search plan for the alleged offender and his criminological personality portrait. With the development of new technologies, for the efficiency of obtaining information from a specialist (expert) in the investigation of arson, it is necessary to use the technology of immersive telepresence (video presence). This allows for a better inspection of the crime scene in the absence of an expert (specialist) directly on the spot. The use of electronic databases and the use of modern means of communication also contribute to solving crimes related to arson «hot on the trail».

Juridical Journal of Samara University. 2020;6(4):126-130
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Tribune of young scientist
LEGAL POLICY OF ANTI-SOVIET A. V. KOLCHAK’S GOVERNMENT IN THE SPHERE OF TAXES
Dulger A.V.
Abstract

This article discusses the legislation of anti-Soviet state entities in the field of taxes, in particular, the government of A.V. Kolchak. Particular attention is paid to the subsequent implementation of regulatory acts in the field of tax regulation in Western Siberia. The features of the tax policy of the Kolchak’s government in the conditions of revolution and civil war are described considering the previous events of the Soviet authorities. The restoration of the tax system is being investigated. The types of direct and indirect taxes, such as corporate income tax, commercial tax, excise taxes on alcohol and tobacco products, income tax, entertainment tax, are examined in detail. The impact of tax policy of A. V. Kolchak to other anti-Soviet governments that acted on the territory of Russia in 1917–1921, and to some extent to the tax policy of the Soviet government after the defeat of the white movement is estimated. The author assumes and argues the lack of effectiveness of the tax policy of the white A. V. Kolchak’s government, which was one of the reasons for his defeat.

Juridical Journal of Samara University. 2020;6(4):131-135
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PROTECTION OF THE RIGHTS OF THE JUDGMENT CREDITOR IN ENFORCEMENT PROCEEDINGS: CHALLENGES AND PROSPECTS FOR DEVELOPMENT
Gubina E.N., Davitavyan D.V.
Abstract

Based on the analysis of scientific literature, the paper defines the concept of protection of rights in enforcement proceedings. The article discusses the provisions of the current executive legislation on the protection of the rights of the claimant in enforcement proceedings. The study of the concept of «protection of rights» and its legal nature is relevant for enforcement proceedings, however, will allow a comprehensive review of special ways to protect the rights of claimants. In the legal literature, you can find different approaches to determining the legal meaning of the term «protection of rights». There is no single approach to the definition of «protection of rights». The difference in the interpretation of the concept is due to the multidimensional nature of the term and the variety of methodological attitudes of the authors in the study of the object of knowledge. Particular attention is paid to the issue of the possibility of foreclosure on the debtor's only residential premises in order to establish a balance of interests in the framework of enforcement proceedings. To ensure the rights and legitimate interests of the claimant in enforcement proceedings and eliminate gaps in the current enforcement legislation, the authors propose to make amendments and additions to the current legislation, in particular, to the Federal Law «On enforcement proceedings».

Juridical Journal of Samara University. 2020;6(4):136-141
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CRIMINAL PROSECUTION: THE PROBLEMS OF DEFINITION
Talalaev K.A.
Abstract

The author of the article uses historical and comparative legal research methods and studies the term «criminal prosecution». The term criminal prosecution is compared with other similar concepts in the article. The author examines the historical process of formation of this concept. The author of the article will outline the content of the discussion about the term criminal prosecution. The modern definition of this term is not correct in the criminal procedure law of the Russian Federation. The author proposes a new definition of the term. Criminal prosecution is the procedural activity of the prosecution in order to expose a person of committing an act prohibited by the criminal law.

Juridical Journal of Samara University. 2020;6(4):142-145
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VIDEO RECORDER IS A SOURCE OF CRIMINALLY SIGNIFICANT INFORMATION IN INVESTIGATING CRIMES RELATED TO VIOLATIONS OF ROAD TRAFFIC AND VEHICLE OPERATION IN THE PASSENGER TRAFFIC SPHERE
Syretsky M.V.
Abstract

The article touches upon the issues of the influence of negative factors on the inspection of the scene of a traffic accident in the investigation of crimes related to violations of traffic rules and the operation of vehicles in the field of passenger transportation. Attention is drawn to the fact that video recording is one of the resources of forensically significant information about an accident that has occurred, one of the sources of which are video recorders. The tasks to be solved when examining data from recorders are determined. The classification of devices is given depending on the type of vehicles equipped with them. The issues of detection, seizure and use of information from video recorders are considered. The technical features and capabilities of DVRs are analyzed, which are directly related to the analysis of information about the event. The specifics of the process of recording streaming data (RAW video stream) on the device at the time of the emergency shutdown of the recorder as a result of an accident, as well as the peculiarities of ensuring the safety of information and its withdrawal are touched upon. The types and possibilities of forensic examinations are indicated, the object of research of which can subsequently be a recording from a video recorder. The question is raised about the need for an explanatory work by the investigator with the participants and eyewitnesses of the accident in order to prevent the irrevocable loss of information about the accident contained on their devices.

Juridical Journal of Samara University. 2020;6(4):146-152
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