Vol 16, No 1 (2021)
- Year: 2021
- Articles: 6
- URL: https://journals.ssau.ru/yuazh/issue/view/509
Full Issue
Статьи
Development of criminal jurisdiction of the European Union
Abstract
The criminal jurisdictions of the European Community and subsequently the European Union began to develop as subsidiary competencies aimed at protecting economic and industry policies established by the founding treaties. Their development has pointed to the necessity of using forced measures for the preventing abuse and countering criminal activities in the area of the customs union and the common market. This paper presents the gradual transfer of limited criminal jurisdictions from the jurisprudence of the European Court of Justice and communitarian law into the contractual competences of the European Union with an explicit legal basis after the entry into force of the Treaty of Lisbon. Using the teleological method, the method of the content analysis (of the legal norms) and the comparative method the paper emphasizes examples of using criminal jurisdictions within the framework of communitarian law, the delimitation of competencies between the EU and the EC, and the changes made by the Treaty of Lisbon in relation to the EU Treaty of Amsterdam. Amendments to the founding treaties have set the foundations for developing criminal jurisdictions into the supranational criminal law that through its norms would supplement national criminal justice systems in the areas of substantive criminal law and the law of criminal procedure.
7-14
European Social Charter: basic guarantees of social and labor rights
Abstract
This article is devoted to the legal analysis of provisions of the European Social Charter, as the main international normative act regulating legal relations in the field of social and labor rights of workers, as well as identifying the features of the system of international cooperation in this area. The article touches upon the problem of institutional and conventional interaction of subjects of international law. The issues of the structure and content of both the European Social Charter and its basic norms governing the sphere of social and labor rights are considered. Attention is drawn to the fact that 60 years have passed since the adoption of this international legal act, which was opened for signature on October 18, 1961 in Turin. In the jubilee year, there is every reason to recall the history of the adoption and entry into force of the European Social Charter, its revision in 1996 and the ratification of this international legal act by the Russian Federation after a long period after the official signature. The article also concerns certain problems of reforming domestic legislation in the field of social rights and guarantees in accordance with European standards. The problems of the implementation of the norms of the European Social Charter governing legal relations related to social rights and guarantees of workers into the modern legislation of the Russian Federation are touched upon. On this basis, it is concluded that it is necessary and advisable to include in Russian legislation the provisions of the European Social Charter on additional guarantees for the protection of social, labour and economic rights. It was found that certain norms of the European Social Charter, which provide guarantees of rights to migrant workers, are not fully included in domestic legislation. Comparative legal analysis of the compliance of the legislation of the Russian Federation with the provisions of the European Social Charter shows that the legal foundations of social and economic guarantees of the rights of Russian citizens are basically consistent with the provisions of the Charter. At the same time, it is stated that the level of guarantees actually provided is determined by the capabilities of the state. Further development of the social and labor sphere in the country makes it possible to approach the standards proclaimed in the Charter, which makes it possible to fulfill the obligations assumed upon its ratification. Russia’s accession to the European Social Charter and its ratification undoubtedly strengthened the position of our state in relations with other countries, increased the level of protection of social, labour and economic rights in the country. It is advisable to discuss issues of ensuring the implementation of the provisions of the European Social Charter in the Russian legal system in order to further improve national legislation, improve the level and quality of life in our country.
15-24
The problem of the parties’ explanations as evidence in arbitration courts
Abstract
The article examines the problem of the parties’ explanations as evidence in arbitration courts. The author analyzes this problem through the prism of the admissibility of lies in the arbitration process. This problem is resolved from both legal and philosophical and ethical positions. The untruth is something that destroys trust – the foundation of society, among other things, it undermines the credibility of the court, which accepts a lie; a lie destroys the person himself. The author reasonably believes that the one who considers a lie in court to be permissible allows the victory of untruth in court, thereby contributing to the transformation of a liar into a triumphant villain with the complicity of the court. Lying leads to dysfunction of justice, allowing lies in the trial is contrary to the very foundations of justice. The entry into force of a judgment based on a lie in one dispute only gives rise to a new dispute between the same parties. The author proves that a negative attitude towards lies is characteristic of both substantive and procedural law. It is concluded that the availability of effective means of protection against lies in the process is consistent with the principle of maintaining citizens’ confidence in the law and the actions of the state; justice is expected from the courts, not the encouragement of lies and deceit.
The author reveals a contradiction between the attitude to judicial errors formed in the Soviet era and the consideration of the procedure of revision based on newly discovered circumstances only to the procedure of revision in the order of self-control, and the actual task of the court to correct judicial errors. It is rightly noted that this approach is extremely difficult to overcome, since new evidence showing the lie of the party is not considered by the courts as newly discovered circumstances. Meanwhile, a decision based on a lie is a miscarriage of justice.
25-48
Simple disposition of an article in a special part of the Criminal law (on the example of kidnapping)
Abstract
Justification of the study. the creation of a criminal law is a laborious and important process. When constructing articles of the criminal code, the legislator used various techniques and methods of presenting legislative material. One of the types of dispositions of an article is a simple disposition. Its application by the legislator raises questions among practitioners when qualifying crimes, and gives rise to discussions in the theory of criminal law. Methods. The methodological basis of the research was formed by general scientific and special methods of cognition: analysis, induction, systemic, comparative legal, formal legal methods and others. Results. The author’s analysis of the simple disposition of the article, which provides for criminal liability for kidnapping, is carried out. The problems arising in the process of designing and applying Article 126 of the Criminal Code of the Russian Federation are investigated. As a starting point, the explanations contained in the acts of the highest judicial bodies, judicial statistics were taken. The ways of improving the norms on criminal liability for kidnapping, proposed in the theory of criminal law, have been studied. Recommendations for the legislator and law enforcement officers have been formed. Conclusion. A simple disposition should be applied in exceptional cases when describing crimes of small and medium severity. The signs of a crime described in a simple disposition should be clear to the law enforcement officer due to the established uniform practice of applying the law. The lack of a unified understanding of the signs of a crime that are not described in a simple disposition leads in practice to legal uncertainty. Explaining the application of articles from a simple disposition leads, in fact, to the construction of corpus delicti by the judiciary. However, the design of the corpus delicti is the prerogative of the legislator. Article 126 of the Criminal Code of the Russian Federation does not meet the criterion of clarity and gives rise to a different understanding in practice of the signs of the objective and subjective aspects of the composition of the abduction of a person. The solution to the emerging problems is to change the simple disposition of Article 126 to a descriptive disposition, including an indication of the signs of the objective and subjective side of the crime. The scientific novelty of the research lies in the fact that the simple disposition of the article for the first-time acts as an independent object of research and analysis on the example of the disposition of Article 126 of the Criminal Code of the Russian Federation. The author’s approach to assessing the applicability of a simple disposition, positive and negative trends in its application by the legislator and the judiciary is proposed.
Key words:
Simple disposition of an article in a special part of the Criminal law
(on the example of kidnapping)
Abstract: Justification of the study. the creation of a criminal law is a laborious and important process. When constructing articles of the criminal code, the legislator used various techniques and methods of presenting legislative material. One of the types of dispositions of an article is a simple disposition. Its application by the legislator raises questions among practitioners when qualifying crimes, and gives rise to discussions in the theory of criminal law. Methods. The methodological basis of the research was formed by general scientific and special methods of cognition: analysis, induction, systemic, comparative legal, formal legal methods and others. Results. The author’s analysis of the simple disposition of the article, which provides for criminal liability for kidnapping, is carried out. The problems arising in the process of designing and applying Article 126 of the Criminal Code of the Russian Federation are investigated. As a starting point, the explanations contained in the acts of the highest judicial bodies, judicial statistics were taken. The ways of improving the norms on criminal liability for kidnapping, proposed in the theory of criminal law, have been studied. Recommendations for the legislator and law enforcement officers have been formed. Conclusion. A simple disposition should be applied in exceptional cases when describing crimes of small and medium severity. The signs of a crime described in a simple disposition should be clear to the law enforcement officer due to the established uniform practice of applying the law. The lack of a unified understanding of the signs of a crime that are not described in a simple disposition leads in practice to legal uncertainty. Explaining the application of articles from a simple disposition leads, in fact, to the construction of corpus delicti by the judiciary. However, the design of the corpus delicti is the prerogative of the legislator. Article 126 of the Criminal Code of the Russian Federation does not meet the criterion of clarity and gives rise to a different understanding in practice of the signs of the objective and subjective aspects of the composition of the abduction of a person. The solution to the emerging problems is to change the simple disposition of Article 126 to a descriptive disposition, including an indication of the signs of the objective and subjective side of the crime. The scientific novelty of the research lies in the fact that the simple disposition of the article for the first-time acts as an independent object of research and analysis on the example of the disposition of Article 126 of the Criminal Code of the Russian Federation. The author’s approach to assessing the applicability of a simple disposition, positive and negative trends in its application by the legislator and the judiciary is proposed.
49-58
On the question of the relationship between entrepreneurial and professional activity
Abstract
The article deals with the issues of qualification of various types of economic activity. An attempt is made to analyze the ratio of entrepreneurial and professional activities, and the criteria of professional activity are highlighted. The author comes to the conclusion that there is an interpretation of the concept of ‘‘professional activity” in the broad and narrow sense of the word. The author shares the conclusion that professional activity is carried out by an individual who has special knowledge, qualifications obtained either in the course of training, or formed as a result of gaining experience in the professional field. This person can carry out their professional duties, both within the framework of an employment contract, and independently under a civil law contract, engaging in private practice. Professional activity may or may not be entrepreneurial in nature. At the same time, entrepreneurial activity may not be professional in terms of the availability of special knowledge and qualifications. Legal regulation of both professional and business activities can be carried out by various methods, including using elements of self-regulation and without them, which does not allow its features to be used to distinguish between these types of activities. The article also considers the features of the concept of ‘‘entrepreneurial activity’’, distinguishing this type of activity from other economic activities.
59-70
Personalized accounting in the pension system of the Russian Federation
Abstract
The article deals with the issues of pension provision of citizens, namely, the features of reporting in the mandatory pension insurance system. The authors studied the norms of the adopted Federal Law № 136-FZ as of 24.04.2020 «On Amendments Being Made to Articles 2 and 11 of the Federal Law «On Individual (Personalized) Accounting in the Mandatory Pension Insurance System», Federal Law № 436-FZ as of 16.12.2019 «On Amendments to the Federal Law «On Individual (Personalized) Accounting in the mandatory pension insurance system» and analyzed the newly introduced employer’s obligation to provide information on personnel changes (on the admission and dismissal of a citizen) no later than a working day, following the day of the issuance of the relevant order or other document. Much attention is paid to the mechanism of implementation of the provisions on the obligation of timely reporting to the bodies of the Pension Fund of the Russian Federation, as well as responsibility (administrative) for non-fulfillment of this obligation. At the end of the study, a conclusion was made about the imperfection of the existing model of receiving reports by one body (the Pension Fund of the Russian Federation), and the control over the provision of such reports by another body (the Federal Executive authority exercising federal state supervision over compliance with labor legislation).
71-81