Vol 15, No 2 (2020)

Full Issue

Статьи

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

Kachalova O.V., Vdovin S.A.

Abstract

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens’ confidence in the judicial system.

The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them.

Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accused’s right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accused’s right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendant’s right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal.

Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

Juridical Analytical Journal. 2021;15(2):7-16
pages 7-16 views

Outer space law

Krivokapich B.

Abstract

Given that sudden breakthroughs in conquering the cosmos are expected, some basic questions about the law governing relations in respect to outer space and in it can be expected to be triggered, starting already with the issue how one has to call that law and what is its real content. The first part of the paper deals with the naming of this branch of law and concludes that for the time being the term «outer space law» is the best and widely accepted. In the second part, the author states that many scientific papers and even official documents, do not define outer space law at all. There are even opinions that the outer space is a phenomenon which cannot be defined at all, suggesting that it is not possible to define a cosmic right either. The author considers that a distinction should be made between national space law of states and international space law (space law in the narrow sense – a branch of international law containing legal rules governing relations in respect to the space and in the space, and in particular the regime of that space and celestial bodies it contains, exploration and exploitation of the space, the regime of navigation in the space, the legal position of the astronauts and space objects, international legal liability for damage caused by space activities, etc.). When so is clearly stated, one can also speak of space law in a broad sense, which, in addition to the norms of space law in the narrow sense, would include norms that are part of «soft law», agreements and legal customs between states and non-state entities, and even at some point so-called. metalaw (law that may one day govern relations between humanity and creatures of other worlds).

Juridical Analytical Journal. 2021;15(2):17-35
pages 17-35 views

Declaration of independence of Armenia: an impressive guarantee of public protection

Ghambaryan A.S.

Abstract

The present article analyzes the conflicting legal relationship between the Declaration of Independence of Armenia 1990 and the Constitution, international treaties and laws. The methods of research are axiomatic, comparative, analysis and synthesis, induction. The author observes that the Declaration of Independence is a legal document of perpetual (eternal), pre-constitutional and above-normative character, which provides for the principles of statehood preservation of Armenia. The Declaration of Independence is a standard for determining the ability of constitutional norms for statehood preservation and for risk diagnoses. No Constitution can be submitted to a referendum or be otherwise adopted if it contradicts the Declaration of Independence. International treaties, as well as all other normative legal acts should not contradict the basic principles of the Armenian statehood and national goals enshrined in the Declaration of Independence.

Juridical Analytical Journal. 2021;15(2):36-44
pages 36-44 views

Medical error when providing medical care as a basis for applying to the court for judicial protection

Tkacheva N.N.

Abstract

Issues of the quality of medical care in the Russian Federation are actively discussed by both scientists and practitioners, in addition, this issue is of particular interest to the direct recipients of this assistance, i.e. citizens. In this paper, in order to comprehensively study the effective protection of violated rights of patients, we study the nature of medical errors, as well as the attitude of patients and doctors to them. In this work, formal legal methods were used. The article examines in detail the algorithm of actions before applying to the court of an interested person whose right is violated by poor-quality medical care, in the context of their impact on the final result of judicial protection, which is carried out by making a legitimate and reasoned decision on the case. The author analyzes the actions, the Commission of which is necessary in cases when suffered injury improper provision of medical services is a medical facility or by a doctor carrying out private practice from the moment of establishment of the fact of committing a medical error by examination and ending with the preparation and filing of a claim in the court in accordance with article 131 and 132 of the code of civil procedure of the Russian Federation. The article examines the subject composition of persons in cases on the protection of patients ' rights, issues of jurisdiction, requirements for the form and content of the statement of claim. The work is illustrated by examples from judicial practice, indicating the variety of cases of violation of patients ' rights, the difficulties that may arise in the process of proving the plaintiff's position in the case, as well as the exclusivity of individual means of proof in this category of cases, such as the expert opinion.

Juridical Analytical Journal. 2021;15(2):45-57
pages 45-57 views

Debt transfer agreement by the creditor: legal forms, procedure, meaning

Povarov I.S.

Abstract

The work catalogs and studies in detail (including in a comparative legal section) various legal forms of the creditor's approval of the transfer of debt by virtue of the transaction and on the grounds provided for by law. The main attention, first of all, is paid to debatable issues regarding the ratio of centralized and individual regulation of the relevant relations, the variety of ways to agree on the transfer of debt (models «consent is a unilateral transaction», «consent as a condition of the contract», etc.), the nature of the impact of (not) giving permission by the creditor on the fate of an agreement on the transfer of debt obligations concluded without his participation, comparison of the modes of preliminary and subsequent approval. The methodological basis of the research was formed by general theoretical (formal and dialectical logic) and special scientific (legal-dogmatic, interpretation of legal norms, legal modeling, comparative legal) methods. As a result, the author substantiates the feasibility of adjusting the legal provisions in the direction of a clear pairing of general instructions on consent to a transaction and special rules on consent to the transfer of debt, as well as in order to eliminate uncertainty about the actual moments of obtaining an approving creditor's will (subject of agreement, the essence of the nullity of the transfer of debt, admissibility the use of constructions of «impersonal» previously given and subsequent consent, etc.).

Juridical Analytical Journal. 2021;15(2):58-72
pages 58-72 views

«Digital» property crimes: issues of criminalization and legislative regulation

Grigoryan G.R.

Abstract

This article shows that an important role in the legal protection of the digital economy is played by modern criminal law, which is designed to form a system of legal mechanisms to ensure the protection of society from «digital» property crimes. The new mechanism of criminal legal protection should ensure effective counteraction to both real and potential criminal threats in the emerging digital reality. It is proved that in the context of digitalization, there is a need for a radical reform of Chapter 21 of the Criminal Code of the Russian Federation. Alternative directions for improving the criminal law provisions on liability for crimes against property are proposed. One of the author's options is to build new separate structures of property crimes – property abuses and other violations in the field of information and telecommunications networks, including the Internet. Another is the allocation of an independent group of property crimes in the field of the digital economy within the framework of Chapter 21 of the Criminal Code of the Russian Federation, and accordingly the division of the chapter into two groups: «property crimes against property» (theft of other people's property, illegal possession of a vehicle, destruction and damage to other people's property) and «crimes against property in the field of information and telecommunications networks».

Juridical Analytical Journal. 2021;15(2):73-90
pages 73-90 views

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