Vol 10, No 1 (2024)

Full Issue

Events

Scientific and Practical Round Table «Anti-corruption readings – 2023»

Bezverkhov A.G., Yudin A.V., Klimanova O.V.

Abstract

On December 13, 2023, a scientific and practical round table «Anti-Corruption Readings – 2023» was held at Samara University, related to the pressing problem of our time and dedicated to the International Anti-Corruption Day – December 9. The event was organized by the Law Institute of the Samara National Research University.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):7-10
pages 7-10 views

International legal sciences

Space law: search and affirmation of legal identity

Bezverkhov A.G., Norvartyan Y.S., Yudin A.V.

Abstract

Space law is considered by the authors as a complex legal phenomenon by analyzing its basic legal characteristics. The subject of space law is characterized through the spatial limits to which space law extends its regulatory influence. The article notes that the emergence and development of space law is linked to the achievements of scientific and technological progress. In the context of legal futurology, the question of the expediency of regulating relations that may arise in the future by space law is resolved. The conclusion is made about the permissibility of such advanced regulation of relations. The subject of space law is multidimensional and includes a complex of various relations arising, functioning and developing in connection with the exploration and use of outer space and the implementation of space activities. The assertion of the legal identity of space law is based on the allocation of principles, norms, and systems of this branch of law. The authors resolve the issue of whether space law belongs to public or private law. It is shown that many issues of space law lie on the verge of the ratio of public and private, and can be resolved by ensuring a balance of public and private principles in them. The foreign practice of involving celestial bodies in civil circulation is critically evaluated.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):11-19
pages 11-19 views

Positive action in the field of human rights and related issues

Krivokapich B.D.

Abstract

The article examines the problem of affirmative action as an institution of international human rights law. The author points out the need for special protection of certain categories of persons, examines the concept and name of measures known as affirmative action. It is emphasized that such measures will be justified if they are objectively necessary, temporary in nature, proportional to the purpose for which they were introduced, collective in nature, i.e. distribution to the relevant group. The article reveals the problems associated with affirmative action, highlighting various forms of exaggeration and abuse of them, and provides specific examples from practice. The author comes to the conclusion that the concept of affirmative action is an important civilizational heritage that should be developed without going to extremes. The article expresses the idea that exaggeration does not correspond to the very idea of the protection in question, as well as the conditions defined to justify the introduction and implementation of positive action measures, primarily those that relate to the requirement of objectivity and proportionality to the desired goal. The author comes to the conclusion that affirmative action measures should in no case turn into a violation of the equally valuable and legitimate rights of the majority of the population or other groups.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):20-28
pages 20-28 views

Эпистемолого-методологический подход к исследованию медиасферы вооруженных конфликтов

Данилович Н.

Abstract

Предметом статьи является исследование медийной сферы вооруженных конфликтов, результаты которого способствуют укреплению государства и права. Цель исследования – предложить научному сообществу и широкой общественности методологический подход к исследованию медиасферы в условиях вооруженных конфликтов, основанный на научном анализе опыта информационно-пропагандистских войн современной эпохи. Результаты этого исследования имеют стратегическое значение для отношения и поведения государств  и их институтов в вооруженных конфликтах. Основной целью исследования медиасферы вооруженных конфликтов является генерация новых научных идей и практического социального опыта, необходимого для адекватного противодействия пропагандистской войне, а также для более эффективного стратегического и оперативного управления конфликтом странами, участие в нем путем проведения фундаментальных и прикладных исследований в этой чувствительной сфере. В исследовании использовались практически все основные аналитические и синтетические методы познания, при этом упор делался на анализ, синтез, абстрагирование, классификацию, обобщение и индуктивно-дедуктивный метод. Из корпуса общенаучных методов в исследовании применялись гипотетико-дедуктивные, статистические и сравнительные методы. Из группы методов, применяемых для сбора данных, применялся метод опроса, а также оперативный метод анализа содержания документов с качественными и количественными методами анализа. Результаты анализов вооруженных конфликтов, произошедших в конце XX – начале XXI века, подтвердили исходное гипотетическое предположение о том, что постоянное изучение сообщений в письменных и электронных СМИ до и во время вооруженных конфликтов влияет на окончательное решение и что результаты исследований после окончания вооруженных конфликтов способствуют укреплению государства и права. Основным результатом данного исследования является осознание того, что без исследования медиасферы вооруженных конфликтов невозможно прийти к новым знаниям, аксиомам, постулатам, принципам, законам и теориям, которые в современных условиях технических и технологических достижений опровергают мотивы и цели всех вооруженных конфликтов и доказывают бесперспективность конфликтов между людьми, социальными группами, этническими и религиозными общностями, нациями, суверенными государствами и военно-политическими союзами.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):29-37
pages 29-37 views

Rule-making procedures in the EAEU

Astapenko I.V.

Abstract

The article presents the results of systematization and analysis of the procedures for the adoption of acts by the EAEU bodies. The issues of the fundamentals of legal regulation and practical aspects of rule-making procedures are studied. The question of the correlation between interstate and supranational methods of regulation within the framework of the EAEU is considered. It is concluded that there is a hierarchical institutional structure in the Union, which determines the dominance of the interstate approach and the minimization of supranational regulation. The system of acts of the EAEU bodies is hierarchical in nature, and the only body formed according to a pronounced supranational principle – the EEC Board during the procedures for adopting acts is quite strictly controlled both by other bodies of the Union (the Council of the Commission, the Intergovernmental and Supreme Councils) and by the Member States. As Eurasian integration develops and deepens, the question of transferring additional competencies and powers to the Union’s bodies and expanding the use of the supranational method of regulation, including through the possible emergence of a parliamentary dimension in the EAEU, will inevitably arise.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):38-44
pages 38-44 views

Theoretical and historical legal sciences

On the problem of definition of the legal formalism concept

Zhuravkov A.A.

Abstract

The article examines the problems of doctrinal understanding of the phenomenon of legal formalism in Russian legal science by contrasting it with the concept of normoscepticism, as well as limits of regulatory potential of law enforcement with a formal legal approach in judicial practice. The relevance of this problem is due both to the presence of significant gaps in domestic legal science in terms of studying the phenomenon of legal formalism and its definition, and to the requests of existing judicial practice, in which, as follows from the decisions of higher judicial instances, abuse of the  form of law is often found, in connection with which there are a number of indications of the inadmissibility of a formal dogmatic approach when considering cases. At the same time, disregard for formally established legislative prescriptions is also obviously unacceptable, since it is fraught with extremely negative consequences, up to the manifestation of so called «judicial arbitrariness» when considering individual cases.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):45-50
pages 45-50 views

Main stages of state-legal development of Syria during the period of Ottoman domination and the French protectorate

Tofan M.

Abstract

In the article, the author analyzes constitutional and legal models imposed during the period of Ottoman rule from 1517 and the French mandate from 1920 and their significance for the historical development of Syria. The purpose of the article is to analyze the content of the laws and methods of government that existed during the era of the Ottomans and the French in Syria. In the process of research, the author discovered similarities between Ottoman and French methods of imposing constitutional and legal models that were used to change the essence of the Syrian state. There is also a coincidence of interests between the Ottomans and the French, which sometimes led to the signing of important agreements between them. The author comes to the conclusion that the Syrians’ rejection of Ottoman and French domination prevented the achievement of the transformation of Syria from an independent state into a colony, even despite the adoption of a number of measures to abolish Syrian culture and the Arabic language.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):51-55
pages 51-55 views

Public law (state-legal) sciences

Legal and doctrinal aspects of the concept of medical secrecy in Russia

Vorobyova O.A., Mishunina A.A.

Abstract

The article is devoted to the consideration of the concept of medical secrecy in Russia, its observance as the constitutional rights of citizens to privacy and guarantees of confidentiality of this information. The problems described in the article have become especially relevant in modern society, when all workflow processes become automated, which leads to an even greater likelihood of leakage of patients’ personal data. When studying this topic, the concept of medical secrecy was given, it was revealed what information relates to medical secrecy, as well as cases in which its disclosure is possible. During the consideration of these issues, problems were identified that arise when working with information constituting a medical secret, including negligence of authorized persons, digitalization of document flow in the healthcare sector, insufficient literacy of medical workers when working with information resources, poor awareness of citizens about what information they convey to medical organizations the imperfection of the technical means by which digitalization is carried out, as well as the problem of providing information constituting a medical secret to other persons after the death of a patient. The authors also proposed ways to solve these problems: toughening the punishment for the negligent attitude of workers to medical confidentiality, increasing the digital literacy of medical professionals, amending the legislation in terms of determining the specific goals for providing information constituting medical confidentiality after the death of a patient. In turn, amendments to the legislation will reduce the number of cases of leakage of patients’ personal data.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):56-63
pages 56-63 views

Problems of using artificial intelligence in the process of realizing environmental rights of citizens

Samovich Y.V., Yun L.V.

Abstract

The use of artificial intelligence (AI) in all spheres of public life of the XXI century is a model of a new interaction between humans and IT technologies. The introduction of artificial intelligence into human life should contribute to the effective protection and protection of environmental rights and minimize the commission of environmental offenses in the process of carrying out economic or other business activities. With the help of numerous AI capabilities, the likelihood of improving the implementation of environmental rights of citizens increases, the coefficient of work of public authorities increases to an updated higher quality level, and the negative impact on the environment is minimized. A review of the identified issues will allow us to assess the role of artificial intelligence in the implementation of environmental rights of citizens. The authors focus on the study of the use of stationary sources that read information about adverse effects on atmospheric air. Individual entrepreneurs and legal entities carry out their inventory and accounting of emissions of pollutants into the atmospheric air. The purpose of this article is to analyze the interaction of IT technologies and environmental rights of citizens, identify positive and negative criteria for their correlation, and identify ways to solve these problems. Positive criteria will be the availability of automatically collected data on the state of atmospheric air, the ability to collect information without direct interaction with a person. Negative criteria will be information problems of the system that cannot be eliminated without human influence, damage to network data, which will subsequently lead to additional costs.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):64-70
pages 64-70 views

Impact of constitutional law rules on economic relations: issues of research methodology

Stahanova E.Y.

Abstract

The work is devoted to determining the methodology for studying the impact of constitutional law norms on economic relations in a modern constitutional state. The main methods of scientific knowledge used to form a reliable idea of the constitutional law regulation of the economy are considered. Russian and foreign doctrinal approaches to the methodology of studying economic relations are analyzed, examples of the application of theoretical concepts in current Russian constitutional norms are demonstrated. The author’s conclusions are formulated, reflecting the features of the methodology for studying the impact of constitutional and legal norms on economic relations in modern economic conditions.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):71-76
pages 71-76 views

Private (civil) sciences

Issues of reimbursement of expenses to expert institutions in civil and criminal proceedings

Ivanov V.V., Yanchenko I.P.

Abstract

The article is devoted to the analysis of the current civil procedure and criminal procedure legislation through the prism of Resolution No. 43-Resolution of the Constitutional Court of the Russian Federation dated July 20, 2023. Based on the study of the position of the higher courts, a comparison is made of the mechanism for appointing and conducting forensic examinations in the civil and criminal proceedings of Russia. Considerable attention is paid to the new procedure proposed by the Constitutional Court of the Russian Federation for payment of forensic examinations carried out in courts of general jurisdiction, which is valid until appropriate amendments are made to the Civil Procedure Code of the Russian Federation. As a research task, the authors identified an attempt to assess the consequences of using such a mechanism in criminal proceedings. Based on the study of the fundamental principles of criminal proceedings, it has been established that it is impossible to link the issue of assigning a forensic examination to its pre-payment to victims or suspects, accused, defendants. The inadmissibility of such an approach is shown due to the specifics of the criminal process, its publicity and the impossibility of linking the issues of proof in the case to the solvency of the parties. The distribution of costs in criminal cases should be carried out only after the resolution of the case on the merits and the adoption of a final court decision. A different approach to the issue of cost allocation, aimed at ensuring the right of expert institutions to pay, will entail a violation of the principles of criminal procedure.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):77-83
pages 77-83 views

Civil law analysis of certain regulatory provisions on budget investments to economic partnerships and companies

Martyshkin S.V., Ryazanova V.V.

Abstract

The article analyzes the concept and certain rules of granting budget investments to legal entities that are not state or municipal institutions and state or municipal unitary enterprises, and establishes a list of such legal entities. The authors formulate a conclusion, according to which only partnerships on trust, limited liability companies and jointstock companiescan act as recipients of budget investments. The only way to provide budget investments to the relevant legal entities is realized through the acquisition by a public entity of shares (stocks) in the authorized (share) capital of business partnerships or companies. The article also examines possible purposes of budget allocations. Such purposes are investments in capital construction objects owned by business partnerships and companies, their subsidiaries and (or) for the acquisition of immovable property objects by them, as well as for purposes not related to the implementation of designated capital investments. The authors justify the admissibility of establishing in the law or in the agreement the target orientation of budget investments, and also, admissibility of monitoring of their targeted use.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):84-91
pages 84-91 views

Criminal legal sciences

Revision of certain conceptual provisions of the criminal law by changing its Special Part

Golenko D.V.

Abstract

This article examines controversial transformations of individual provisions of the Special Part of the Criminal Code of the Russian Federation of the XXI century, affecting its conceptual principles and creating systemic contradictions. One of the fundamental changes concerns the return of «administrative prejudice» to Russian criminal law through the appearance and dissemination in the Special Part of the Criminal Code of the Russian Federation of articles describing the characteristics of crimes with administrative prejudice. Another revision is related to the inclusion in the Special Part of the Criminal Code of the Russian Federation of articles providing for special criminal liability for certain types of aiding and abetting. The third change concerns the exclusion of Part 3 of Article 331 of the Criminal Code of the Russian Federation, which contains a provision on liability for crimes against military service under wartime legislation. The meaning, admissibility during the period of validity of the criminal law, as well as the limits and rules of this kind of legislative reforms are determined.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):92-97
pages 92-97 views

Human trafficking and criminal exploitation of human: problems of legislative regulation

Kovalkova А.S.

Abstract

The article analyzes the problems of legislative regulation of human trafficking and criminal exploitation of people (Articles 127.1, 127.2, 240.1, 241, 242.2 of the Criminal Code of the Russian Federation). The relevance of the chosen topic is due to the increased public danger and transnational nature of these crimes, as well as the imperfection of criminal legal regulation in response to the crimes under study. The legal uncertainty of the concept of human exploitation, as well as other shortcomings of legislative technology, is recognized to have a negative impact on the practice of qualifying human trafficking for the purpose of removing organs and tissues from the victim. As a solution to the identified problems, the author proposes: to include among the objective signs of human trafficking (Part 1 of Article 127.1 of the Criminal Code of the Russian Federation) actions of human exploitation with the simultaneous exclusion of Art. 127.2 of the Criminal Code of the Russian Federation; adjust the definition of human exploitation in Note 2 to Art. 127.1 of the Criminal Code of the Russian Federation; include in Art. 127.1 of the Criminal Code of the Russian Federation, note 3, by virtue of which recruitment, transportation, harboring of a person committed for the purpose of removing organs and tissues of the victim will be qualified under paragraph «g» of Part 2 of Art. 127.1 of the Criminal Code of the Russian Federation, regardless of whether the perpetrator has the goal of exploiting the victim; add Part 1 of Art. 240 and part 1 of Art. 242.2 of the Criminal Code of the Russian Federation with the words «not related to the deprivation of liberty of the victim».

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):98-105
pages 98-105 views

On the effectiveness of the norms regulating the legal status of a suspect under the Criminal Procedure Code of the Russian Federation and the Code of Criminal Procedure of the Federal Republic of Germany

Loginova N.G., Trofimik A.G.

Abstract

The article researches the criminal procedural status of the suspect. The article provides a comparison of the relevant provisions of the Code of Criminal Procedure of the Russian Federation and the Code of Criminal Procedure of the Federal Republic of Germany. Based on an analysis of the procedural status of a suspect in the Russian Federation and the Federal Republic of Germany, the authors come to the conclusion that a suspect in a domestic process is given status based on the will of the relevant subject, expressed in one of the decisions specified in Art. 46 of the Code of Criminal Procedure of the Russian Federation and is essentially not connected with actual suspicion; moreover, in some cases, if there is actual suspicion, it is not always possible to give such a status and, therefore, to explain the rights of such a participant. According to German legislation, there is no formal identification of a suspect, which prevents interference in the rights, freedoms and legitimate interests of a suspect by subjects of criminal proceedings. The idea is substantiated that the status of a suspect in domestic criminal proceedings is short-term. Through a systematic analysis of the current Code of Criminal Procedure of the Russian Federation, the authors came to the conclusion that the maximum period cannot exceed 10 days, followed by filing charges or termination of criminal prosecution. The purpose of the article is to develop proposals for the legislator to improve the procedural status of the suspect, such as legislatively establishing the duty of the law enforcement officer, when deciding to initiate a criminal case or select a preventive measure, to simultaneously explain the rights provided for in Art. 46 of the Code of Criminal Procedure of the Russian Federation and interrogation as a suspect within 24 hours from the moment of initiation of a criminal case against a specific person, the selection of one of the preventive measures in accordance with Art. 100 Code of Criminal Procedure of the Russian Federation.

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):106-112
pages 106-112 views

On the construction of the corpus delicti committed by a person occupying the highest position in the criminal hierarchy

Semenova D.M., Nuzhdova D.A.

Abstract

The article deals with the norm of Article 210.1 of the Criminal Code of Russian Federation on criminal liability for occupying a higher position in the criminal hierarchy and the practice of its application. It is concluded that there is no uniformity in the interpretation of the concept of «a person occupying a higher position in the criminal hierarchy» both in the theory of criminal law and in law enforcement practice. An opinion is expressed about the inconsistency of Art. 210.1 of the Criminal Code of Russian Federation to the principles of criminal law, primarily the principle of justice, and the legal determination of the basis of criminal liability (Article 8 of the Criminal Code of Russian Federation). Considering that criminal liability should arise not for a dangerous state of the individual, but for the commission of a socially dangerous act containing all the elements of a crime, the authors propose to exclude Article 210.1 from the Criminal Code of Russian Federation. At the same time, it is recommended to construct elements of especially serious crimes, supplementing them with the qualifying (especially qualifying) attribute «commitment of an act by a person occupying a higher position in the criminal hierarchy».

Juridicheskiy vestnik Samarskogo universiteta Juridical Journal of Samara University. 2024;10(1):113-117
pages 113-117 views

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