Vol 16, No 2 (2021)
- Year: 2021
- Articles: 6
- URL: https://journals.ssau.ru/yuazh/issue/view/600
Full Issue
Статьи
Procedural form of domestic constitutional law: a retrospective analysis
Abstract
the article is devoted to the study of the main historical stages in the development of procedural norms and institutions of domestic constitutional (state) law. The author considers the issues of delimiting state law from constitutional law as regularly replacing each other stages in the development of the legal system of Russia. Arguments are given for the importance of analyzing the constitutional (state) procedural form at the early stages of the functioning of the Russian statehood for an attempt to substantiate the continuity of the development of the Russian state, taking into account its civilizational and geopolitical specifics. The historical and legal features of the first stage of the Old Russian patriarchal-feudal state law (IX–XV centuries), including the procedure for electing a prince (called an invitation or vocation), with the following stages are indicated: making a veche decision; an embassy to the selected candidate; his arrival and «strengthening» on the table. The procedural aspects of functioning of the veche as a representative body, including the procedure for convening the veche and the procedural procedure for making decisions by it, are studied from various angles. In the course of the development of the Russian statehood, veche was transformed into Zemsky Sobor – prototypes of parliamentary institutions. Accordingly, an important role in the conciliar-estate state law (XV–XVIII centuries) is played by the procedural issues of the activities of Zemsky Sobors. Various points of view in Russian historiography regarding the periodization and chronological classification of the activities of the Zemsky Sobors are considered. The procedural aspects of the formation and holding of Zemsky Sobor are revealed. Within the framework of the periodization of the development of the procedural form of constitutional law, an analysis of the procedures for the functioning of the State Council within the framework of imperial state law (late XVIII–XIX centuries) was carried out. Within the framework of the study of the Soviet period of development, the following directions were considered: 1) analysis of the features of state legal procedural norms; 2) highlighting the legal procedural form in state law. The methodological basis of the article consists of the following methods: formal-legal, comparative-legal, historical.
7-17
Аbout some problems of protection of exclusive rights to the result of intellectual activity
Abstract
in the Russian Federation, the problem of copyright violations is particularly acute. Numerous studies point to the fact that today in Russia only a relatively small number of copyright holders manage to really protect their copyright subjective rights. This is due both to the imperfection of legislation in the relevant field, which has undergone significant changes relatively recently, since the main norms on copyright protection were combined within Part four of the Civil Code of the Russian Federation, which had both positive and negative consequences for the purposes of copyright protection and law enforcement, and with other factors. Thus, for many works protected under the copyright regime, it is technically possible to distribute them via the Internet, which is extremely difficult to control by any (including legal) means. Such works include those that are in the greatest consumer demand: videos, books, musical works, computer programs, etc. Legal relations arising with copyright objects are important both for copyright holders and for society as a whole. The article discusses in detail the features of exclusive rights to the results of intellectual activity, as well as the problems of their protection. The author considers the problem of the spread of the import of foreign works not put into civil circulation on the territory of the Russian Federation, the problem of publishing more than the number of works stipulated by the contract, the problem of quoting photographs, the problems of copyright infringement in social networks, the problems of protecting official works, as well as a number of other issues, analyzing gaps in legislation and law enforcement practice. It can be concluded that research on copyright protection, primarily in order to obtain practical recommendations in this area, is extremely relevant for our country and for the modern historical period.
18-27
Role of the witness as a participant of the criminal procedure in the framework of the implementation of criminal procedural proving at the pre-letigation stages
Abstract
the article is devoted to the study of procedural aspects related to the effectiveness of functioning of the institution of witnesses at pre-trial stages in the framework of modern Russian criminal proceedings. The author considers the issues of participation of the understood person as one of the subjects of proof in the production of investigative or other procedural actions, the list of which is fixed by the current Criminal Procedure Code of the Russian Federation. His role as a participant in the criminal process in the preservation (deposit) of evidentiary information in the implementation of «control» over the progress and results of investigative actions carried out by the criminal prosecution authorities in the criminal case is indicated. The situation concerning the improvement of the institution of witnesses has been studied from various sides, if the latter is not excluded by the legislator from the criminal procedure law. Various points of view of both leading processualists and practitioners on the existing problem are considered: to preserve or exclude (cancel) the institution of witnesses. In support of the author's position on the importance of witnesses as participants in the criminal process, practical examples are given. The procedural status of the understood person and his main functions as a participant in the production of investigative actions in pre-trial proceedings are disclosed. The issues of the presence of witnesses during the implementation of investigative actions and the use of technical means for fixing the latter are studied. The features of video and photo recording of the results of investigative actions, including with the participation of witnesses in them, and the obligation of further acquaintance of this participant with the received video material are revealed. The methodological basis of the article consists of the following methods: formal-legal, comparative-legal, historical. The author comes to the conclusion that it is necessary to preserve the institution of witnesses in the framework of criminal proceedings in Russia.
28-37
Procedural features of the proof in an abbreviated form of inquiry
Abstract
in 2013, the legislator tried to meet the needs of practice in a simplified form of criminal proceedings for obvious and minor crimes – Chapter 32.1 was introduced into the Criminal Procedure Code of the Russian Federation, which consolidated the shortened form of inquiry. The main idea of an inquiry in an abbreviated form is as follows: if, based on the results of a procedural check of a crime report, sufficient data has been obtained about the commission of a crime by a specific person, a charge is brought against him with the simultaneous initiation of a criminal case with the subsequent collection of evidence in the amount that is minimum necessary to establish the event of a crime, the nature and size of the harm caused to him, as well as the guilt of the person in its commission, followed by the drafting of an indictment, which, together with the collected materials, is immediately submitted to the prosecutor for approval and transfer to the court; sentencing is carried out by a court with a limited judicial investigation – only the evidence that is reflected by the investigator in the indictment order, as well as information about the person, is subject to investigation, while the defendant is assigned a punishment that cannot exceed one-half of the maximum term or the amount of the most severe type of punishment provided for the crime committed. The introduced legal institution has a number of features that differ significantly from the standard concepts of the theory of evidence and evidence law. The authors conducted surveys of practicing employees, their questionnaires, in the process of research, methods such as comparison, deduction and induction were used. Some conclusions were drawn from the results of the study. It was a legislative error to place the inquiry in an abbreviated form in the section related to the preliminary investigation on the grounds that this simplified procedure contains significant features of both pre-trial and judicial stages of criminal proceedings. This legislative omission has far-reaching consequences, causing significant confusion in the domestic evidentiary law. It seems more logical to place the simplified procedure in Part 4 of the Code of Criminal Procedure of the Russian Federation, which contains special procedures for criminal proceedings. The legislative wording about limiting the amount of evidence collected only by the event of the crime, the nature and size of the harm caused, as well as the person's guilt in committing a crime, in fact, does not imply a narrowing of the subject, but the limit of proof in criminal cases investigated in an abbreviated inquiry. From the analysis of the provisions of the law, it follows that a complete list of circumstances subject to proof is subject to establishment (Article 73 of the Code of Criminal Procedure of the Russian Federation). However, such a deep study of these circumstances is not required, due to the simplicity and obviousness of the criminal case under investigation. Simplification of the criminal justice procedure is achieved by abandoning complex and time-consuming methods of collecting evidence (investigative actions) in favor of simpler and low-cost (non-procedural), inherent in the stage of verifying a crime report.
38-48
Сharacteristics of recognition and enforcement of decisions of foreign courts and foreign arbitration courts
Abstract
the article discusses theoretical and practical issues of the institution of recognition and enforcement of foreign judgments in Russia. The relevance of the topic of the article is justified by the development and conclusion in 2019 of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Cases. This international agreement is presented by the international legal community as a unified set of basic rules regarding the recognition and enforcement of foreign judgments in civil and commercial cases, aimed at the effective recognition and enforcement of such judgments. The authors analyze the provisions of this act, the practice of recognition and enforcement of foreign judgments by domestic courts. In the course of the study, the level of awareness of practicing lawyers, law students about this institute was established. Recommendations are given on changing the legislation of the Russian Federation, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Cases of 2019. The methods of solving problems are determined by the socio-humanitarian nature of the science of jurisprudence. The following methods of solving problems are: a special legal method (the study of theoretical works of researchers on the topic of recognition and enforcement of foreign judgments); statistical method (indirect survey of representatives of the legal community: practicing lawyers in civil and arbitration cases and students of law faculties and institutes); analysis and synthesis of the information received, its description (study of recognition and enforcement of foreign judgments in Russia, regulatory legal acts regulating this institution, study of judicial practice on this topic). In the course of the study, in addition to identifying and proposing solutions to problems in the legal regulation and practice of recognition and enforcement of foreign judgments in Russia, the main factors affecting the recognition and enforcement of decisions of foreign courts, foreign arbitration courts, arbitration are presented.
49-61
On the issue of new circumstances in the civil process
Abstract
the article discusses the issues of understanding the category of «new circumstances» in civil proceedings, since in legal science there are different approaches to the interpretation of this concept. The author notes that the new circumstances themselves cannot lead to the cancellation of the judicial act, however, if the court had taken them into account when resolving the dispute, the decision could have been different. The author notes that the difficulty in determining the legal nature of new circumstances begins with the definition of the definition, therefore, a different definition of «new circumstances» in civil proceedings is proposed.
62-71