Vol 8, No 4 (2022)

Full Issue

Events

Staff of the Law Institute of the Samara University is the winner of the «Lawyer of the year in the Samara region» award

«Juridical Journal of Samara University» C.

Abstract

7 декабря 2022 года в cамарском Дворце спорта имени В. С. Высоцкого в рамках празднования Дня юриста состоялось торжественное вручение престижной премии «Юрист года в Самарской области». В номинации «Юридическая наука и образование» лауреатом премии «Юрист года в Самарской области» стал коллектив Юридического института Самарского национального исследовательского университета имени академика С. П. Королева», который представляли директор юридического института, заведующий кафедрой теории и истории государства и права и международного права Безверхов Артур Геннадьевич, заведующий кафедрой уголовного права и криминологии Кленова Татьяна Владимировна, заведующий кафедрой государственного и административного права Полянский Виктор Владимирович, заведующий кафедрой гражданского и предпринимательского права Рузанова Валентина Дмитриевна, заведующий кафедрой уголовного процесса и криминалистики Савельев Константин Анатольевич, заведующий кафедрой гражданского процессуального и предпринимательского права Юдин Андрей Владимирович.

Juridical Journal of Samara University. 2022;8(4):7-8
pages 7-8 views

Public law (state-legal) sciences

Perception of extremism and terrorism by student youth of the Samara region

Borodin A.V., Loginova I.A., Polyansky V.V.

Abstract

The article deals with aspects of the students’ attitude to extremism based on the results of a mass sociological survey of students in the Samara region. The relevance of the topic is due to the fact that at present extremism has become a problem not only in Russia, but throughout the world. At the same time, there is no certainty that the younger generation has adequate attitudes towards this antisocial phenomenon. The purpose of the article is to identify problem areas in the field of outreach work with youth and develop recommendations for university staff to improve the prevention of extremism among students. The article reveals the features of students’ ideas about the essence of extremism and terrorism, emphasizes contradictions in the level of identification of various kinds of deviations, analyzes the level of students’ willingness to resist extremism and cooperate with law enforcement agencies in preventing extremist acts. In conclusion, the authors highlight the priority areas of preventive work among young people based on the identified gaps in the cognitive and behavioral components of the perception of extremism.

Juridical Journal of Samara University. 2022;8(4):9-19
pages 9-19 views

Main legal mechanisms for the protection of the constitutional right to freedom of thought and speech in modern Russia

Gorlov E.V., Shirinya A.A.

Abstract

The article examines the legal mechanisms of protection of the constitutional right to freedom of thought and speech in Russia. The relevance of the topic in modern conditions is substantiated. The problems with the scientific and practical approach of the use of case practice are analyzed in order to develop relevant recommendations for improving the mechanism of legal protection of the constitutional right to freedom of thought and speech. The purpose of the article is to analyze the study of the legal mechanisms of the constitutional right to freedom of thought and speech in modern Russia. To achieve this goal, the essence of the constitutional right to freedom of thought and speech is determined; the legal mechanism for the implementation and protection of the right to freedom of thought and speech is considered; the ways of implementing the constitutional right to the protection of thought and speech are analyzed. The material and procedural norms of constitutional law act as the object of scientific work. The subject of the study is the problems of the application of legal mechanisms for the protection of the constitutional right to freedom of thought and speech.

Juridical Journal of Samara University. 2022;8(4):20-25
pages 20-25 views

Actual problems and directions of improving the administrative process in the activities of the Ministry of Emergency Situations of Russia

Gavrilenko V.A., Shenshin V.M.

Abstract

The presented study examines the current problems and directions of improving the administrative process in the activities of the Ministry of Emergency Situations of Russia. The purpose of the study is to consider the problems and directions of improving the administrative process in the activities of the Ministry of Emergency Situations of Russia. The analysis of law enforcement and judicial practice on disputes arising in connection with the application of a measure to ensure the proceedings in the case of an administrative offense committed in the form of a drive to the judicial authority of the accused person; the implementation of actions to draw up a protocol on an identified administrative offense in violation of the term, which is indicated by the provisions of Article 28.5 of the Administrative Code of the Russian Federation; the compilation by an official of the supervisory authority of the act of verification of a legal entity on the same day with the protocol on the commission of an administrative offense, revealed that currently there is a specific judicial practice in these categories of cases, allowing judicial authorities to apply a uniform approach to their resolution, despite the differentiation of views and legal understanding demonstrated by the parties of law relations. Some issues arising from these types of disputes have not yet been reflected in the legislation, which creates the need to prove in court the legality of actions carried out by officials of the Ministry of Emergency Situations of Russia, which generally contributes to an increase in the number of court disputes, and also increases the burden on judicial authorities.

Juridical Journal of Samara University. 2022;8(4):26-33
pages 26-33 views

Guilt in the form of intent in tax relations

Farkhutdinov R.D.

Abstract

Guilt in law is inextricably linked with the onset of responsibility, while having two forms – negligence or direct intent. Guilt in modern law is commonly understood as a mental (intellectual and volitional) attitude to one’s act and its consequences. Meanwhile, the tax authorities are required to determine the guilt in tax legal relations based on the results of tax audits within the framework of desk and field inspections. Meanwhile, a logical question remains – which criteria of guilt are applicable in tax audits, in the absence of such in tax legislation, and which tools will indicate direct and indirect signs of guilt. The research methodology includes a systematic approach, a historical and comparative method, and a method of deduction. The purpose of the work will be proposals for the development of criteria for assessing the taxpayer’s guilt in the application of tax liability.

Juridical Journal of Samara University. 2022;8(4):34-36
pages 34-36 views

Unjustified tax benefit: from the judicial doctrine to the anti-avoidance rule

Demin A.V., Molina A.Y.

Abstract

The article analyzes the concept of judicial doctrine. The characteristic features of this legal phenomenon, which is a source of judicial discretion in tax law enforcement, are highlighted and described. The authors state the fact that there is no legal definition that reveals the concept of judicial doctrine. There is a continuing trend towards the active introduction of various doctrines into law enforcement practice, including the field of taxation. The article pays special attention to the doctrine of unjustified tax benefit, specially developed to identify cases of circumvention of the tax law and was (before the appearance of Article 54.1 in the Tax Code of the Russian Federation in 2017) the general anti-avoidance rule (GAAR) in Russia. Based on the study of relevant judicial practice, the article concludes that arbitration courts do not consider the anti-avoidance rule set out in Article 54.1 of the Tax Code of the Russian Federation, as “something” new, radically different from the doctrine of unjustified tax benefits, as well as about the emergence of serious difficulties for law enforcement officers in the process of “filling” the anti-avoidance rule (Article 54.1 of the Tax Code of the Russian Federation) with specific content. The authors pay special attention to the problem of the admissibility of tax reconstruction when applying Article 54.1 of the Tax Code of the Russian Federation, concluding in the end that the courts consider it necessary to apply and apply in practice such a tool as tax reconstruction.

Juridical Journal of Samara University. 2022;8(4):37-45
pages 37-45 views

Criminal legal sciences

Principles of penal law and problems of guaranteeing the rights of convicts

Adoyevskaya O.A.

Abstract

The article identifies and analyzes the problems of guaranteeing the rights of convicts in connection with the principles of penitentiary law. The author comes to the conclusion that not all general and special rights of convicts are guaranteed by the penitentiary legislation in accordance with the principles of penitentiary law. In order to implement the principle of humanism and prevent treatment that degrades human dignity, it is necessary to fix at the legislative level measures that prevent overcrowding of institutions of the penitentiary system. The article analyzes international and foreign experience in terms of developing communications of convicts sentenced to deprivation of liberty with the outside world. The necessity of increasing the number of long-term and short-term visits for persons serving sentences in ordinary and light conditions of correctional colonies is substantiated. Increasing the number of visits and telephone conversations for convicts with relatives will contribute to maintaining family ties and successful resocialization practices. It is proposed to include in the educational programs of the School for Preparation for Release in Correctional Institutions topics devoted to technologies for the restoration and development of socially useful ties of convicts. It is concluded that in the formation and implementation of the penitentiary policy, it is necessary to comply with the principles of national penitentiary law and the generally recognized principles of international law, as well as ensuring the compliance of penitentiary norms of the practice of their application with constitutional provisions.

Juridical Journal of Samara University. 2022;8(4):46-51
pages 46-51 views

«Disrespect for religious people’s feelings» as the aim of offences against freedom of religion (Article 148 of the Criminal Code of the Russian Federation): problems of legislative technique

Ivanchin A.V., Silantev S.A.

Abstract

The article concerns the topic of rightness of the lawmaker regarding «disrespect for religious people’s feelings» as the aim of offences against freedom of religion. As research material the provisions of Article 148, 282 of the Criminal Code of the Russian Federation were used applying which causes corresponding problems. The chosen topic relevance is explained by the questions as to application of Article 148 of the Criminal Code of the Russian Federation provoked by its change in 2013. Science novelty is attributed to lack of theoretical research of the juridical-technique drafting and application features of provisions concerning offences against freedom of religion. The research purpose is to analyse the aim factor of «disrespect for religious people’s feelings» as regards fulfilment of the quality requirements of the law, principles of justice and equal treatment under the law. Based on regulations of the criminal-law science the problems of legislative technique relating to the aim of disrespect for religious people’s feelings are demonstrated. The creators have expressed the opinion that non-standard use of the term «disrespect» to describe mens rea, not actus reus and also generic nature of the «religious people’s feeling» criterion are not defects. Particular recommendations were proposed that allow defining whether it was attempted to defile religious values. It was concluded that the most important shortcoming of the current legislative definition of the «disrespect for religious people’s feelings» aim is that it causes unreasonable inequality of religious people and atheists, religious and other socially vital feelings under the criminal law.

Juridical Journal of Samara University. 2022;8(4):52-57
pages 52-57 views

International legal sciences

Торговые обычаи в праве международной купли-продажи товаров

Jovičić K.A.

Abstract

В данной статье рассматривается применение торговых обычаев, одного из наиболее важных источников автономного права международной купли-продажи (так называемого lex mercatoria), которое трейдеры создают в соответствии со своими потребностями. Чтобы понять особенности применения торговых обычаев, необходимо определить их положение в иерархии источников права. В качестве отдельного вопроса в статье анализируются субъективные и объективные основания применения торговых обычаев, каковы возможные способы регулирования данного вопроса в правовых текстах. Указано, что торговые обычаи имеют нормативную и интерпретационную роль в договоре международной купли-продажи товаров. Их применение было бы невозможно, если бы закон не позволял этого. В статье показано, как этот вопрос регулируется в характерных правовых системах, как национальных, так и международных. Делается вывод о важной роли торговых обычаев в праве международной купли-продажи товаров. Это подтверждается тем, что для осуществления торговой практики достаточно торгового обычая. Это решение оправдано, учитывая, что от торговцев ожидается знание не только профессиональных правил, но и обычаев и согласование своих действий с торговыми обычаями, а не с правовыми нормами.

Juridical Journal of Samara University. 2022;8(4):58-61
pages 58-61 views

Concept, origin and development of diplomacy

Krivokapić B.D.

Abstract

The article deals with the problems of origin and the first stage of development of diplomacy. Mentioning various approaches, the author identifies 8 possible definitions of diplomacy, noting that how it will be understood depends on the context. Then interesting points are presented related to the emergence and development of diplomacy in the distant past, with a special overview of special diplomatic missions, diplomatic correspondence, the first permanent diplomatic missions, other forms of diplomatic and quasi-diplomatic relations, laws (internal legal acts of the countries of the Ancient World), diplomatic privileges and immunities. This is followed by a brief overview of the further development of diplomacy and diplomatic law. The author believes that today there is much evidence that profound changes are coming both in the existing concept of diplomacy and in international diplomatic law. Some of the reasons are that the processes of globalization, regionalization and integration are increasingly active on the international scene; the sovereignty of states is weakening; the range of types of international cooperation is expanding, which is carried out in other ways, and not through states; the role of international organizations is being strengthened; the importance of permanent diplomatic missions is also decreasing because many issues, especially the most important ones, are resolved in other ways, since the development of means of transport and technology has allowed heads of state to quickly meet at summits, as well as to increasingly use bilateral and multilateral meetings via Internet video communications; the number and importance of non-state actors in international relations and international law, in particular such as transnational companies, is constantly increasing; etc.

Juridical Journal of Samara University. 2022;8(4):62-73
pages 62-73 views

Suffrage of persons deprived of liberty: positions of the European Court of Human Rights and the Constitutional Court of the Russian Federation

Samovich Y.V., Yun L.V.

Abstract

Recently, the importance of finding a clear and, most importantly, a stable balance between private and public interests has become increasingly important. Complex relations between countries, between judicial institutions, regional associations, state sovereignty, which has once again found itself in the place of globalization, are one of the few factors that force a different assessment of interstate interactions. The issue of the electoral rights of persons who are in places of deprivation of liberty in the domestic legislation of Russia and international law is regulated differently – in the Russian Federation, persons who are serving time for criminal acts committed cannot use their active suffrage. This norm finds its formal consolidation in the Basic Law of Russia (Part 3 of Article 32). Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms in Article 3 does not formally reflect restrictions on subjects entitled to vote, defining only the requirement for States to hold free elections with reasonable frequency by secret ballot in conditions that ensure the free expression of the will of the people when choosing legislative authorities. It was this discrepancy that led to the issuance of a pilot resolution to Russia and the United Kingdom, which is in a similar position. The purpose of this article is to review the positions of the Constitutional Court of the Russian Federation and the ECHR to assess objectivity in the fundamental issue of respect for human rights and the right of the state to its own opinion. And although on September 16, the Russian Federation completed the procedure for denouncing the European Convention for the Protection of Human Rights and Fundamental Freedoms, and, accordingly, the rulings of the European Court of Justice no longer apply to Russia, this analysis seems important – how objective and impartial an international judicial body be to resolve internal issues of the State and is it capable of doing so? The result of the reflections led to the conclusion that there is a need for a conceptual revision of the relationship between national and interstate courts in general, especially taking into account the subsidiary nature of international justice and the instability of the legal positions of international judicial institutions.

Juridical Journal of Samara University. 2022;8(4):74-81
pages 74-81 views

Tribune of young scientist

Judicial defense of fathers’ rights

Ochkina A.A.

Abstract

This article is devoted to one of the most relevant topics in modern Russian law, namely the legal judicial protection of the institution of paternity. The relevance of the article is primarily due to the presence of legal problems in the field of protecting the rights and interests of fathers. The author focuses on the fact that at present the number of family cases considered by the courts is growing rapidly, as evidenced by official statistics. However, there are a large number of violations of the rights and interests of fathers, including in the framework of legal proceedings. The purpose of the article is to identify and explore the problems associated with the protection of paternal rights in court proceedings. The author analyzes a number of legal positions of the Constitutional Court of the Russian Federation. Based on the analysis of law enforcement practice, the author concludes that there are emerging trends in the field of reforming the current Russian legislation, in addition, the importance and expediency of such reform is emphasized. The author used general scientific (dialectical, methods of analysis, synthesis) and private scientific methods (formal legal). The article concludes that certain provisions of domestic legislation in the field of protecting the rights and interests of fathers need to be improved. The author suggests his own ways of improving the current legislation in the area under consideration. It is possible to apply this scientific research in practice in order to change the legislation governing aspects of relations for the protection of paternal rights. The findings of this study will be of interest to specialists in the field of civil and family law.

Juridical Journal of Samara University. 2022;8(4):82-86
pages 82-86 views

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