Vol 7, No 3 (2021)
Theory of law and state
System of legal liability in the context of political science of law (a first approximation)
Abstract
Theoretical and empirical data indicate the need to recognize the value and applicability of the political science tools of law in legal research. Determination of the scientific status of political science of law as an element of the general theoretical science of law or an independent science at the initial stage of «approbation» of its methodological prospects is not an end in itself. The article attempts to initially understand the political content of legal liability and its system at the normative and individual levels of legal regulation using the methods of political science of law. Based on the analysis of social and political practice, domestic and foreign conceptual ideas, as well as the provisions of the current legislation of Russia and the specifics of its application, the author comes to the conclusion that political and legal reality deeply penetrates into the structure of the phenomenon of the system of legal liability. By defining the boundaries of the «political element», areas of contact of the legal liability system with the socio-political sphere in the general context of the legal formation process, assessment of the regulatory impact and the degree of effectiveness of law enforcement are identified. The problem areas of the system of legal liability are revealed, requiring the application of the methods of political science of law and the imposition of the model of the legal process, mediating the consolidation and realization of liability, on the model of the political process. The prospects are established and the expected results of the use of political and legal analysis, political and legal modeling, political and legal experiment and a comparative political and legal method in relation to the subject of research are formulated.
7-18
On some approaches to determining the definition of sources of Russian law in the works of Soviet scientists
Abstract
The article studies the essential characteristics of the concept of «sources of law», shows a variety of positions on the issues of systematization of sources of Russian law, gives a characteristic of conceptual approaches to their classification. The main volume of the work is devoted to the analysis of the doctrine of the sources of law, which was established in the legal doctrine in the Soviet period. The conclusion is made that the content of the concept depends on the specific era in which it was formed. In the Soviet period, a normative approach prevailed in legal thinking with an emphasis on studying the nature of formal sources of law, reflecting the reasons for the legal obligation of a norm. It is indicated that Soviet scientists understood the material conditions of social life as sources of law in the material sense. The author shows that the lack of unification of the term «sources of law» is determined by the essential polysemicity of its structural elements. Soviet scientists who touched the doctrine of the sources of Russian law, relying on previous works, brought something new to it, expanding the conceptual and categorical boundaries.
19-24
Implementation of the principle of equality and guarantee of the rights of convicted persons
Abstract
The article deals with the problems of implementing the universally recognized principle of equality in penal enforcement policy and guaranteeing the rights of convicts, as well as suspects accused of committing crimes in custody. The fundamental rights of convicted and detained persons are analyzed. It is proved that not all fundamental rights of convicted and detained persons are guaranteed by law in accordance with the principle of equality, which is among the universally recognized principles of international law and is aimed at international legal protection against discrimination. It is proved that the penal enforcement legislation does not provide for legislative restrictions guaranteeing protection against discrimination on any grounds. In the case of convicted and detained persons, there are often inequalities in gender, age, property and legal aid. Now an opportunity to serve prison term concerning women and minors at the place of residence as it is provided for men isn't enshrined in the criminal and executive legislation. Such a legislative decision contributes to the severance of family and socio-useful ties among convicted women and minors. The prohibition of the use of technical means by lawyers in the territory of a correctional institution is discriminatory, since it infringes on the right of convicts to receive qualified legal assistance, guaranteed by the Constitution of the Russian Federation. The article shows the differences in penal policy between the haves and the poor, which is also classically discriminatory and unacceptable. It was concluded that the implementation of universally recognized principles of international law, including the principle of equality of citizens before the law and the court, is the responsibility of the legislative and law enforcement agencies and contributes to the achievement of the goals of criminal enforcement legislation, as well as to strengthening citizens' faith in the institutions of State power.
25-30
About the types of unfinished crime
Abstract
The article is devoted to the study of the scope of the concept of an unfinished crime. In the literature, in addition to the types of unfinished crime named by the legislator (preparations for a crime and attempts at a crime), others are also distinguished (voluntary refusal of a crime, voluntarily abandoned preparation and attempt, incomplete and complete attempt at a crime). Based on the normative material (Articles 29 and 31 of the Criminal Code of the Russian Federation), this approach is critically evaluated. At the same time, it is noted that in science, at the level of an unfinished crime, the often produced classifications of preparations for a crime and attempts at a crime do not manifest themselves in any way. The author considers this to be an inconsistency of theoretical analysis. He tries to overcome it and offers to distinguish, on the one hand, complete and incomplete unfinished crimes, on the other hand, objectively and subjectively unfinished crimes. At the same time, it is proposed to understand under complete-an unfinished crime, in which a person believes that he has done everything necessary to bring the crime to an end; under incomplete – an unfinished crime, in which a person believes that he has not done everything necessary to bring the crime to an end; under objectively unfinished – crimes that were not completed due to an error on the part of the persons who committed them; under subjectively unfinished – crimes that were not completed due to an error on the part of the persons who committed them. Assessing the significance of the identified types of unfinished crimes, in conclusion, it is noted that they, without affecting the criminal responsibility itself, are important for its implementation, because the more completely an unfinished crime is committed, the closer it is to the finished one and the more severe punishment is permissible, all other things being equal; erroneous actions of a person indicate less public danger, which, all other things being equal, on the contrary, should entail less severe punishment.
31-37
Failure to enter information about funds placed by individuals and individual entrepreneurs in financial accounting and reporting documents of a credit institution (Article 172.3 of the Criminal Code): another unclaimed norm?
Abstract
On the example of Article 172.3 of the Criminal Code of the Russian Federation the article considers the problem of insufficient demand for a number of crimes committed in the field of economic activity (Chapter 22 of the Criminal Code of the Russian Federation). It is noted that against the background of the campaign that began in the country in 2009 to liberalize criminal policy in the field of combating economic crime and a significant decrease in the number of this type of crime (more than four times), there is a permanent process of criminalization of socially dangerous acts that infringe on public relations in the economic sphere. At the same time, out of 60 compositions of Chapter 22 of the Criminal Code of the Russian Federation, no more than a quarter are relatively «working». Almost a third of the norms are completely unclaimed by law enforcement practice. One of these norms was Article 172.3 on responsibility for failure to enter information about funds placed by individuals and individual entrepreneurs in financial accounting and reporting documents of a credit institution. The reasons for this state of affairs, according to the author, are the insufficient criminological substantiation of the introduction of such norms into the Criminal Code, their constructive imperfection, duplication by other compositions similar in content, the lack of practice-proven methods of disclosing and investigating cases of this category, the low professionalism of law enforcement officers conducting criminal cases, cases of economic crimes, etc. Proposals are made to improve the criminal policy in the field of combating economic crimes, based on a systematic, scientifically grounded approach.
38-45
On the definition of the concept of «a circumstance excluding the criminality of an act»
Abstract
Chapter 8 of the Criminal Code of Russia is called «circumstances that exclude the criminality of an act». In this regard, the purpose of the study is to define the concept of «circumstances that exclude the criminality of an act» on the basis of clarifying those objective reasons (grounds) by virtue of which causing harm with the necessary defense and other manifestations of legitimate harm is not considered a crime. The designated goal was achieved as a result of the analysis of the norms of Russian, Russian and foreign criminal laws on the circumstances excluding the criminality of the act, and the provisions of the theory on the issue under study. The paper proves that the property of legality or illegality, usefulness or malice of an act that causes the death of a person or other harm is entirely formed by a set of factors external to the act and the actor. At the same time, it is emphasized that «an act» is not a specific concept in relation to the concept of «circumstances excluding the criminality of an act». The optimal concept by which to designate «circumstances that exclude the criminality of an act» is the concept of «situation». In this regard, under the circumstances excluding the criminality of the act, it is proposed to understand the situations, in the presence of which harm to the interests protected by criminal law, within and in compliance with the conditions specified in the norms of Chapter 8 of the Criminal Code of Russia, other federal laws and other regulatory legal acts, is lawful. It is proved that the absence of the corpus delicti used in practice (pr. 2 Part 1 of Article 24 of the Criminal Procedure Code of Russia) as a procedural basis excluding criminal proceedings in relation to the circumstances that eliminate the criminality of the act does not reflect the essence of the latter and does not stimulate the investigative bodies to establish them. In this regard, relevant proposals are being made.
46-58
Counterfeit as a criminal phenomenon: means of counteraction
Abstract
The market of counterfeit goods by its content is a component of the criminal market, as a complex socio- economic phenomenon. The problem of counterfeit goods is very acute, since it affects not only the interests of copyright holders, but also negatively affects consumers in any sector of the economy. The article analyzes the legislation on «counterfeiting», analyzes the reasons for the turnover of counterfeit products, shows the dynamics of detection of counterfeit products by customs authorities from 2015 to 2020, considers the measures taken and necessary in the fight against counterfeiting.
59-65
The position of professor V. A. Lazareva on the collection of evidence in general can be supported, but...
Abstract
This article is a kind of scientific answer to the recently published work of Professor V. A. Lazareva, in which, once again, questions were raised concerning the essence and content of the collection of evidence as the first stage of the entire process of proving in a criminal case. The author of the article expresses general solidarity with the position of V. A. Lazareva, advocating the differentiation of mechanisms for collecting various types of evidence depending on the sources of perceived information, that is, for the lack of identity between the categories «collecting evidence» and «forming evidence» ... However, some of the arguments analyzed in the article, which V. A. Lazareva uses to substantiate her position, do not seem entirely reasonable, prompting a discussion. At the same time, despite some variability and different shades of judgments expressed, the author of this article considers Professor V. A. Lazareva to be his scientific ally and like-minded person, at the same time counting on reciprocity on the part of a respected scientist.
66-72
Judicial practice in criminal and other types of legal proceedings: prospects for convergence
Abstract
The doctrine of judicial law presupposes, in the main, the unification of procedural laws. The author notes that judicial law in the form of judicial practice is also an object of convergence. There are three types of differences in judicial practice – temporary, territorial and sectoral. The article clarifies the reasons for the difficulties of convergence of judicial practice of various types of legal proceedings. It is stated that intersectoral uniformity, or at least the absence of obvious contradictions, is one of the main goals of the judicial reforms in recent years. It is established that the main problem of the intersectoral lack of uniformity is different interpretations of the same substantive law in criminal, civil, arbitration and administrative proceedings. The main content is devoted to the analysis of examples of different approaches to common substantive legal problems (using examples of civil, tax law) in criminal cases and in other types of court cases. The author concludes that it is necessary to overcome the closedness of judicial practice on itself within each of the types of legal proceedings, the inadmissibility of different interpretations of substantive legal norms in criminal and other types of legal proceedings.
73-79
Ethics and psychology of law-enforcement activity
Prosecutorial activity in the light of additional guarantees of proper execution at the federal level of decisions of the Constitutional Court of the Russian Federation
Abstract
The article considers the prosecutor's activity in the context of the proper execution at the federal level of decisions of the Constitutional Court of the Russian Federation (the highest judicial body of constitutional control), taking into account additional guarantees established by the legislator. Ensuring that law enforcement agencies take into account the positions of the supreme judicial body of constitutional control within the framework of the current legal system is a necessary element of maintaining the rule of law and order in the country. A special role in this process is assigned to the Prosecutor General's Office of the Russian Federation, which interacts with the Constitutional Court of the Russian Federation within its competence, can inform the President of the Russian Federation in appropriate cases, and also applies response measures against supervised federal state authorities. The author also analyzes the reasons for the improper execution of decisions of the supreme judicial body of constitutional control, which are highlighted in scientific publications on this issue.
80-85
Public-legal significance of civil status acts in family sphere in Spain: problems of legislation and law enforcement
Abstract
In this article, the author, using the example of legislation and law enforcement activities in Spain, attempts to show that acts of a person's civil status, including those characterizing his marital status, have various legal consequences, both of a private and public nature. State registration of individual biographical and demographic characteristics of a person is necessary for his individualization and identification, as well as for ensuring the legal security of public relations. In addition, the registration of the population in the format of civil status records provides the state with the opportunity to form the correct demographic policy in society, budget planning in social and economic areas. In Spain, registry information in the field of civil status records is collected, processed, transmitted and submitted according to new rules that were gradually put into effect from 2017 to 2021. Currently, the civil register is an exclusively electronic information resource built on an extraterritorial basis, which provides many advantages to both state bodies and directly to citizens-applicants.
86-90
Administrative law and process
Some security issues in pipeline transport
Abstract
The article shows the role of pipeline transport in the Russian economy, analyzes the Russian legislation regulating the activities of this type of transport; analyzes typical violations detected in the operation of pipelines by control and supervisory authorities and the prosecutor's office; shows the role of Rostekhnadzor in detecting violations of high-risk objects. The article analyzes the legislation of the Republic of Belarus and the Republic of Kazakhstan in terms of legal regulation of the trunk pipeline transport and the supervision of it by the prosecutor's office; provides judicial practice on compensation for environmental damage caused by accidents on pipelines. In addition, a comparative analysis of the order of supervision in Russia and in the United States was carried out. The conclusion is made about the need to activate state supervision by Rostekhnadzor; improve regulatory regulation by adopting a specialized regulatory act.
91-101
Conflict of legislation on non-stationary trade
Abstract
The article examines the legal situation of non-stationary trade objects, considers aspects of reforming the legal status of non-stationary trade in the Russian Federation, as well as the implementation of state policy in the field of non-stationary trade in the Samara Region. The author concludes that the current legislation places in unequal conditions the owners of non-stationary trading facilities that have concluded land lease agreements at different periods of time, namely: before March 1, 2015 and after this date. In addition, the article draws attention to the insufficient certainty of the legal status of non-stationary trading facilities in the Russian Federation as a whole and the formation of various law enforcement practices that do not always protect the interests of business entities. It is noted that the formation of a legal certainty regime is an important guarantee for the development of small and medium-sized businesses in the Russian Federation. The author proposes measures aimed at establishing the equality of owners of non-stationary trading facilities and restoring competition.
102-106
Mechanics of the interaction of material and procedural using the example of an assignment in execution proceedings
Abstract
In the article, the author considers certain issues related to the transfer of law from the assignor to the assignee at the stage of execution of a judicial act. The thesis is substantiated that the facts that are not directly related to the change of persons in the material legal relationship should not have any significance for the replacement of the party to the enforcement proceedings. The issues related to the legal consequences of the discrepancy between the assigned right of claim and what is reflected in the enforcement document are discussed. The problems of legal consequences of the earlier partial execution and the expiration of the deadline for submitting the enforcement document for execution are considered. For the execution of the claim made by the debtor to the original creditor or the acquirer in the period from the moment of receipt of the notification of the assignment until the replacement of the recoverer in accordance with the established procedure, approaches are proposed aimed at coordinating the public execution procedure with the change of the creditor that has occurred.
107-114
Tribune of young scientist
Digital technologies as a vector of transformation of the principle of justice and efficiency in the tax system of the modern state
Abstract
The article is devoted to a close analysis of digitalization in the life of the state and its citizens in the field of taxation. The article shows that digitalization affects relations in all spheres of life, from the educational process to taxation. The author focuses on the fact that the state should first of all apply the principles of fairness and effective taxation in digitalization, so that the taxpayer can receive the necessary advice and convenience of digital services, services and payment of taxes according to fair criteria, and the state can effectively monitor tax revenues. The novelty of the research lies in the fact that despite the theoretical research work on the subject in general, this problem is poorly studied and requires further research in the formation of the concept of the principle of efficiency and fairness in the field of tax digitalization, which shows the relevance of the work and the need for study. The article is devoted to a detailed analysis of tax efficiency statistics together with the implementation of the principle of fairness in the modern tax system through digitalization on the example of property taxation in the Rostov, Moscow and Samara regions in digital activities through the taxpayer's personal account. Considerable attention is paid to the formation of the concept of digitalization based on the principles of efficiency and fairness through analysis, statistical data, court decisions and relations between the taxpayer, tax authorities and the state due to the lack of sufficient research in the scientific community. The author substantiates the idea that the principle of fairness and efficiency of property taxation in the process of digitalization should take into account the features of modern social reality.
115-120
Legal fact and case: correlation in legal relations
Abstract
The article deals with the correlation of legal fact and the phenomenon of case in the sphere of legal relations. Approaches to the interpretation of the term «legal relations» from two intents are studied. The article studies the specifics of the terminological definition of a legal fact and its classification. It details the properties of an event as a type of legal fact. The author substantiates the idea that the case can be perceived as a legal fact. The problem of attributing the phenomenon of chance to legal phenomena is analyzed. The author draws attention to a two-pronged approach to the terminological understanding of the category case. Examples of legal variations in the interpretation of this phenomenon are given. Conclusions are drawn about the genetic proximity of the case and the legal fact-event. An important result of the research is to put forward a reasonable position that the legal phenomena under study are related as private and general. The author comes to the conclusion that a legal fact is identical to a case only if the randomness factor is legally fixed in normative legal acts.
121-125
European approach to the delimitation of non-personal data for the purposes of civil circulation
Abstract
The purpose of the article is to comprehensively investigate the need to differentiate the division of data into personal and non-personal. The article uses the methods necessary to analyze the application of a unified approach in understanding the use of data in civil circulation, namely: formal legal, comparative legal, formal logical, systemic and functional. The theoretical significance of the study lies in the development of a unified concept for understanding data in civil circulation. After analyzing foreign and national doctrine and legislation, the author comes to the conclusion that in practice in civil circulation there is value for using a unified understanding of data without highlighting both personal and non-personal data in their composition. The author considered «non-personal data» in the context of the European approach to dividing data into personal and non-personal. The author analyzed the applicability of the European approach to Russian realities, as well as the main problems that arise in practice in connection with the use of non-personal data.
126-131