Vol 7, No 1 (2021)

Full Issue

Events

Biometrics and law: issues of theory and practice

Bezverkhov A.G., Yudin A.V.

Abstract

This article is devoted to topical issues of biometrics and law, discussed during the inter-industry forum «Biometrics and Law» held on March 19, 2021 at the Samara National Research University. Information material about the past scientific and practical event is combined with analytical calculations related to this issue. Biometrics in this article is considered within the framework of the philosophical dichotomy of «freedom and security». Attention is drawn to a number of ethical problems and promising problems of legal science and practice generated by biometrics.

Juridical Journal of Samara University. 2021;7(1):7-9
pages 7-9 views

Theory of law and state

Place and role of legal doctrine in the system of forms (sources) of law: general-theoretical aspect

Orlov K.A.

Abstract

The article deals with the problem of legal nature of the legal doctrine as a source (form) of law. The article substantiates the idea that the legal doctrine has a twofold meaning, since it has an independent meaning in the system of forms of law of various legal systems, as well as is fully a source of law that forms the foundation, methodological basis for the creation, interpretation and application of legal norms in other legal systems, in particular the Russian state. The author draws attention to the characteristic features inherent in the legal doctrine, analyzes its role in various legal systems, where it acts as a form of law. The author compares the positions of various points of view of Russian scientists on the legal nature of legal doctrine as a form of law. The author identifies and describes the characteristic features of legal doctrine as a source of law in the activity of the mechanism of the Russian state in the sphere of legislative and executive implementation.

Juridical Journal of Samara University. 2021;7(1):10-17
pages 10-17 views

History of law and state

Insult of nobility in Dvina charter

Abdulaeva I.A., Loba V.E.

Abstract

The article is devoted to the issue of protecting personal honor and dignity during the period of validity of the Dvina Charter (1397–1398). The text of the Charter explains that insult of nobility, which means a dismissive (negative) assessment of a person and personal behavior in relation to someone class affiliation made in verbal form or by certain actions, is under the criminal-legal prohibition. The purpose of the work is to show the essential features of corpus delicti in the field of insult of nobility containing in the Dvina Charter. This corpus is an important lever of criminal-legal protection of honor and dignity, with considering representation on acceptable form of negative assessment of a person, depending on his class affiliation. This theme is relevant due to the fact that honor and dignity are the values of human society and are inherent in man throughout the history of his existence. And it is appropriate to recall that the society in which we live is characterized by a deep moral crisis, in which these values seem to be pushed into the background, and the protection of these enduring values, based on the principles of humanism and the saving of criminal repression, is transferred to the plane of administrative offenses. It is possible to confirm the correctness of the approach, chosen by the legislator, comparing historical facts. So we consider the task of researching the theme on the criminal-legal protection of personal honor and dignity in the Dvina Charter is scientifically relevant.

Juridical Journal of Samara University. 2021;7(1):18-24
pages 18-24 views

International legal personality of Russian lands during the period of feudal fragmentation of the state (XII–XVI centuries)

Yudina T.F.

Abstract

The article deals with the issues of determining the international status of Russian lands during the period of feudal fragmentation of the state in the XII – XVI centuries. The author notes that with the collapse of the old Russian state, in the feudal period, has not stopped international relations between the Russian lands, which allowed to keep the identity of the Russian people. Surrounded by states hostile to Russia, the Russian states acted as subjects of international law, conducted a fairly active foreign policy, and concluded treaties both within their own ethnic group and within their own state.

Juridical Journal of Samara University. 2021;7(1):25-28
pages 25-28 views

Constitutional law

Res judicata properties in the context of decisions of the European Court of Human Rights: correlation and scope

Alexeeva T.M.

Abstract

In this article, the author considers the concept of res judicata. It is concluded that res judicata has two main properties: presumption of the truth of the judgment, and prejudice. The author examines the presumption of the truth of the judgment, and prejudice arising from the concept of res judicata in relation to the decisions of the European Court of Human Rights. The author comes to the conclusion that the decisions of the European Court of Human Rights as res judicata have the property of a presumption in full measure. At the same time, due to the expanding competence of the Constitutional Court of the Russian Federation, the power of res judicata of the European Court of Human Rights may be limited. With regard to the second property of res judicata - prejudice, it is concluded that the decisions of the European Court of Human Rights res judicata do not have prejudice of evidentiary value. However, decisions of the European Court of Human Rights res judicata have the property of prejudicial competence of an international (interstate) agency. In this sense, according to the author, res judicata has an intersectoral prejudicial meaning.

Juridical Journal of Samara University. 2021;7(1):29-39
pages 29-39 views

Constitutional acts of Kyrgyzstan Autonomous Soviet Socialist Republic

Arabaev A.A.

Abstract

The article is devoted to the research of forming constitutional legislation of Republic of Kyrgyzstan, that originates from the moment of acceptance of the first constitutional acts as a Autonomous Republic in the composition of Russian Soviet Federal Socialist Republic. The author of the article researches law and political specifications of the Constitution of the Kyrgyz Autonomous Soviet Socialist Republic, that has been accepted in 1929 by the all-Kyrgyz congress of Soviets. One of the features of that Constitution was a determination of the status of Kyrgyzstan as a part of Russian Soviet Federal Socialist Republic. The author comes to the conclusion that as a fact Soviet Kyrgyzstan as a part of Russian Soviet Federal Socialist Republic in spite of having a constitution and the higher authority and other state elements as a territory, nationality, language, symbols most likely represented not an autonomous state, but the administrative unit with some state elements, forming a part of Russian State. In the article the author concludes that in spite of the fact, that the Kyrgyz Constitution of 1929 wasn’t adopted by the All-Russian Central Executive Committee and All-Russian congress of Soviets as it was determined, that Constitution was valid and formed the national statement of Kyrgyzstan in such a period of time.

Juridical Journal of Samara University. 2021;7(1):40-45
pages 40-45 views

Constitutional equality in the information society: the problem of private discrimination

Volkov V.E.

Abstract

The article deals with the implementation of constitutional norms on equality in the information society, which stimulates the manifestation of private and economic discrimination. Threats arising from the existence of natural inequalities have been investigated. On the basis of the conclusion about the legal admissibility of private discrimination, social and legal grounds for the implementation of the constitutional principle of equality have been revealed. The differentiation of private and economic discrimination is proposed, factors are identified that must be considered when determining the admissibility of discriminatory behavior in the information society: the level of market monopolization, the negotiating capabilities of the parties, the amount of costs required to restore the violated right. Considering the insufficiency of the actual capabilities of consumers of information benefits, it is concluded that it is necessary to protect the weak side of information relations. Movement to the minimum possible level of discretion on the side of provider of informational goods and creation of additional legal guarantees for constitutional and other rights of the citizen is provided.

Juridical Journal of Samara University. 2021;7(1):46-50
pages 46-50 views

Constitutional amendment 2020: from legal technique to legal meaning

Osetrov S.A.

Abstract

In the article, some features of legal technique of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation «On the improving regulation of certain issues of the organization and functioning of public authorities» are observed. The author of the article pays attention to the difficulties of the legal understanding of some new provisions of the Constitution of Russia. In this context, the author concludes, that such constitutional provisions can be clarified by formation of legal positions by the Constitutional Court of Russia and by the adoption of amendments to the current legislation. Besides, in the article attention is paid to the need of rethinking of certain being formed legal positions of the Constitutional Court of Russia in the context of changing powers of public authorities. It is marked, that the forming of legal certainty regime is an urgent guarantee of the warning of the constitutional conflicts.

Juridical Journal of Samara University. 2021;7(1):51-56
pages 51-56 views

Civil law

Legal regime of biobanks in domestic legislation

Kryukova E.S., Ruzanova V.D.

Abstract

In the article on the basis of a critical analysis of the existing positions in the doctrine the concept of a biobank as an object of rights was formulated. At the same time, it is proposed to distinguish between the organizations in charge of biobanks and the collections themselves. It was concluded that biobank is a complex object, which is «differentiated unity», since its elements, on the one hand, are autonomous, but on the other hand, are interconnected and interdependent. It is emphasized that the formation of a single legal regime of biobanks is complicated by the substantive heterogeneity of this object and the diversity of its elements. Taking into account the experience of European States in this field of legal regulation and scientific views, the idea of publishing as a basic special law on biobanks, which should establish their legal regime as an object of rights and rules for organizations under the jurisdiction of biobanks, was supported. The need for organizations working with biobanks to provide unprecedented protection is proven. The structure of the legal regime of biobank has been determined and as its most important component a group of rules on obtaining the consent of the holder for the further use of biobanks and data derived from them has been identified. The feasibility of introducing more diverse forms of consent to the circulation of the contents of biobanks is justified.

Juridical Journal of Samara University. 2021;7(1):57-62
pages 57-62 views

Problems of legal status of medical organizations (in the aspect of taking into account the specifics of provision of medical services)

Borodin S.S., Kudasheva P.S.

Abstract

The article analyzes the legal status of medical organizations, taking into account the specifics of provision of medical services. The main requirements for legal entities and medical personnel are identified, and a comparative analysis of Russian and foreign legislation regarding the permissive procedure for creating organizations in the medical field and the system of legal regulation of their activities is carried out. The authors came to the conclusion that it is necessary to adjust the norms of the current legislation in determining the legal status of medical organizations, develop a full-fledged conceptual apparatus in the medical field, coordinate a number of norms and eliminate contradictions in terms of establishing the rights and obligations of the service provider.

Juridical Journal of Samara University. 2021;7(1):63-69
pages 63-69 views

Criminal and penal law

Theoretical analysis of legislative definition of the regime in correctional institutions: problems and ways to solve them

Juzhanin V.E., Gorban' D.V.

Abstract

The article provides a theoretical analysis of Part 1 of Article 82 of the Criminal Code of the Russian Federation, which defines the regime in correctional institutions of the Russian penal system. It is noted that this definition does not correspond to the achievements of modern penitentiary scientific thought about the regime. In particular, it is emphasized that the regime cannot provide conditions for serving a sentence, since it includes these conditions. Also, the regime cannot ensure the protection of convicts, supervision over them and separate maintenance of different categories of convicts, since, on the contrary, the latter are the means of ensuring the regime. According to the authors of the article, the legislator incorrectly uses the phrase «regime of detention of convicts», meaning «regime of serving a sentence», since they are different legal phenomena. It is noted that the most optimal definition of the regime is presented in the theoretical model of the general part of the new Criminal Code of the Russian Federation, prepared by a group of authors, but the authors also subjected this definition to some adjustments.

Juridical Journal of Samara University. 2021;7(1):70-75
pages 70-75 views

Criminal procedure

Ensuring the right to a fair trial in criminal proceedings: lessons from the pandemic

Markovicheva E.V.

Abstract

During the COVID-19 pandemic, ensuring individual rights and freedoms in all areas of public life has proven to be problematic. The sphere of criminal proceedings is always associated with state coercion and restrictions on rights and freedoms, but during a pandemic, such restrictions expand further. This article reveals certain issues of ensuring the right to a fair trial under the conditions of quarantine measures adopted by different states. The use of the comparative legal research method allowed the author to identify general directions in solving problems related to ensuring the fairness of criminal proceedings in various states. The author believes that the problems associated with ensuring the right to a fair trial arising in a pandemic period require a systematic analysis that will determine the ways to solve them. The article contains several suggestions for optimizing modern criminal procedure. The author proposes to use the possibilities of digital transformation of criminal proceedings more actively, in a systemic way, requiring compliance with certain legal and organizational conditions.

Juridical Journal of Samara University. 2021;7(1):76-81
pages 76-81 views

Reclamation of objects and documents as a way of collecting evidence in pre-trial proceedings in a criminal case

Rossinskiy S.B.

Abstract

This article is devoted to the consideration of the appeal as one of the most simple, purely «technical» pre-trial techniques aimed at collecting objects and documents that are subject to potential attachment as evidence to the materials of a criminal case. On the basis of the predefined code of criminal procedure obligations upon all institutions, enterprises, organizations, officials and citizens with the requirements, instructions and requests of bodies of inquiry and preliminary investigation, the author considers the discovery as one of the main ways of collecting the evidence, introduced in a criminal trial in finished form, specifically: physical evidence, other documents, conclusions of the expert, the results of investigative and administrative activities. At the same time, the problems of criminal procedure regulations of the reclamation of objects and documents are analyzed, the procedural order and the most acceptable applied technologies for its implementation in everyday law enforcement practice are considered.

Juridical Journal of Samara University. 2021;7(1):82-88
pages 82-88 views

Evidence – trial and pre-trial

Lazareva V.A.

Abstract

The article again raises the question of the concept of proof in criminal proceedings. The adoption of the Code of Criminal Procedure in 2001, based on principles different from those of earlier times, did not lead to any noticeable revision of the postulates of the theory of evidence, including the concept of proof, but further aggravated the long-known contradictions. The incompatibility of the ideas of proving, which developed in the previous period of our history, as a cognitive activity aimed at establishing objective truth, with the principles of the presumption of innocence and competition is far from obvious to everyone, so the author of the article attempts to separate two fundamentally different approaches to the concept of proof between two fundamentally different parts of the criminal process and thereby reconcile the irreconcilable sides of the scientific discussion.

Juridical Journal of Samara University. 2021;7(1):89-94
pages 89-94 views

Criminalistics and forensic enquiry

The use of digital communication technologies in the context of a pandemic as a way to improve the effectiveness of justice

Smakhtin E.V.

Abstract

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and «Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2», which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation. 

Juridical Journal of Samara University. 2021;7(1):95-101
pages 95-101 views

Civil process

Types of guarantees in claim proceedings: a doctrinal approach

Tkacheva N.N.

Abstract

In this article, the author examines the guarantees of protection of rights and interests in claim proceedings, to understand the basis of the division of such guarantees into types, the author turns to the theory of law. Using a doctrinal approach, the article examines the classification of guarantees depending on the method of fixing, on their content, the method of ensuring and the form of implementation. Special attention is paid to the issue: what is a criterion of the division of safeguards for the species. Highlighting the subject of legal regulation as a criterion for dividing branches of law, guarantees are classified into constitutional and sectoral guarantees. There are other types of guarantees, depending on the methods of protection of violated or disputed rights - material and procedural guarantees. Attention is drawn to the fact that the study of procedural guarantees for the protection of the rights of citizens and organizations is of particular interest in the science of civil procedure law. Using the method of scientific research, the paper studies the classifications of procedural guarantees proposed by process scientists. Analyzing the content of the right to judicial protection, the author's classification of the guarantee of protection of rights and interests in the claim proceedings is proposed at the end of the article.

Juridical Journal of Samara University. 2021;7(1):102-108
pages 102-108 views

Tribune of young scientist

Crimes against peace and security of mankind (Chapter 34 of the Criminal Code of the Russian Federation): some problems of differentiating responsibility

Goncharova Y.O.

Abstract

This article examines the problems of constructing norms on crimes against the peace and security of mankind (Chapter 34 of the Criminal Code of the Russian Federation), analyzes the controversial issues of regulating of the qualified behavior of the subjects of these attacks. It is obvious that in Russia the regulatory, including criminal law, instruments for countering crimes against the peace and security of mankind have not yet been finally formed and have not been properly tested in practice, the designs of the compositions do not always correspond to the needs of law enforcement practice and criminological foundations. The author focuses on the study of the gaps in the implementation of the normative differentiation of responsibility, the study of the features of consolidation of qualifying features in the articles of Chapter 34 of the Criminal Code of the Russian Federation. The article notes that the saturation of the qualifying signs of the investigated criminal law prohibitions is insufficient. Currently, only five articles (Articles 354, 354.1, 359, 360, 361) of this chapter contain qualified compositions. Obviously, during the formation of the investigated criminal law prohibitions in the mid-90s of the last century, the legislator did not pay due attention to their saturation with the necessary differentiating circumstances, taking into account the criminological content and the level of social danger of one or another illegal behavior that harms the peace and security of mankind. The article proposes a number of normative decisions to consolidate a number of qualifying circumstances in the norms of Chapter 34 of the Criminal Code of the Russian Federation, the content of the nature and level of social danger of individual encroachments is analyzed, the consideration of these circumstances in the construction of qualified corpus delicti is substantiated.

Juridical Journal of Samara University. 2021;7(1):109-114
pages 109-114 views

Problems of using formal means of proof in russian criminal proceedings

Mokrushin S.V.

Abstract

The article deals with the problem of the need to establish the objective truth in a criminal case in the context of consolidation in the criminal and criminal procedure legislation of the norms on the use of formal means of proof along with evidence. The article describes the characteristic features of various types of formal means of proof, reveals their significance in the Russian criminal process, and also highlights the most problematic issues of using formal means of proof to achieve the goals of criminal proceedings. The author suggests approaches to solving this problem from the point of view of achieving a reasonable balance of using the advantages that formal means of proof provide, if necessary, to minimize the negative aspects of their use, taking into account modern means and methods of obtaining evidence. The author substantiates the idea of the need to make changes to the relevant regulatory framework, which should eliminate the existing one at the present time.

Juridical Journal of Samara University. 2021;7(1):115-119
pages 115-119 views

About the juvenile direction of criminal policy of the Republic of Kazakhstan: historical background and development issues

Myrzash M.M.

Abstract

The article considers the paradigm of the Republic of Kazakhstan’s juvenile criminal policy, reveals its historical background and development problems. The article describes the features of the «Biy» judicial system in the Kazakh society up to the middle of the XVIII century. The article examines the characteristics of applying criminal punishment to juveniles after the accession of the Kazakh khanates to the Russian Empire in the XVIII–XIX centuries. The conclusion is made about the continuity of juvenile justice foundations in pre-revolutionary and post-revolutionary Russia and modern Kazakhstan. The article confirms the ineffectiveness of further lowering the age of criminal responsibility, as well as traditional punishments that provide for the deprivation or restriction of liberty of juveniles. The idea of re-socialization of juveniles who have served a criminal sentence and are released from it is defended. To re-socialize, it is recommended to expand the practice of alternative punishments without isolation from society related to labor impact and the introduction of probation with labor impact concerning juveniles in the Republic of Kazakhstan.

Juridical Journal of Samara University. 2021;7(1):120-125
pages 120-125 views

Qualification of theft from a pipeline associated with bringing it into a state of disrepair

Tumanov A.S.

Abstract

This article deals with the problem of qualification of secret theft of oil, oil products and gas when the corresponding pipeline is damaged, destroyed or rendered unusable. The purpose of the work is to study and summarize the materials of judicial and investigative practice in cases of this category, analyze the theoretical views and approaches of various authors to the qualification of such illegal actions. Special attention is paid to the methods of theft from pipelines and their impact on the criminal legal assessment of the crime. The author analyzes the mandatory signs of the subjective side of bringing pipelines into disrepair in the form of selfish and hooligan motives. Indicated their own position regarding the influence of the motives of the perpetrator when the total imputation of crimes under paragraph «b» part 3 Article 158 of the Criminal Code and part 3 to 5 of Article 215.3 of the Criminal Code. In conclusion, the author summarizes the results and makes a generalized conclusion about the necessary legislative changes in the disposition of the criminal law norm.

Juridical Journal of Samara University. 2021;7(1):126-130
pages 126-130 views

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