JUDICIAL POWER
Reference:
Bormotova L.V.
The reasonableness of the duration of criminal proceedings - a special case of unjustified legal convergence that violates the historical order
// Legal Studies.
2024. № 9.
P. 1-16.
DOI: 10.25136/2409-7136.2024.9.71580 EDN: ANMVVT URL: https://en.nbpublish.com/library_read_article.php?id=71580
Abstract:
The subject of study is some significant historical stages of the formation and development of the institution of criminal procedure deadlines. The aim is to identify the national tradition of regulating deadlines and mechanisms for speeding up criminal procedures. The object of the study was the criminal procedure norms of different periods of time of the development of legislation in Russia, domestic judicial practice and the practice of the European Court of Human Rights in the context of resolving the issue of the need for the existence of a requirement for the reasonableness of the terms of criminal proceedings in the system of traditional Russian principles. The research is based on general scientific and private scientific methods of cognition, which made it possible to analyze sources on the chosen topic and synthesize knowledge about the evolution of the terms of criminal proceedings. The method of comparative historical jurisprudence allowed us to formulate a conclusion about the adherence to the legislative tradition of separating principles-ideas and specific rules for the preliminary investigation and judicial review of criminal cases. It is concluded that the requirement of the reasonableness of the timing of criminal proceedings in the historical context was completely justified and addressed to the preliminary investigation authorities, as a rule, on immediate procedural activity. Changing the status of this rule to a principle did not significantly change law enforcement activities, but introduced an imbalance in the systematic approach to regulating criminal procedural relations. The measures to speed up the judicial review mentioned in the provisions of Article 6.1 of the CPC of the Russian Federation and the corresponding resolution of the Plenum of the Supreme Court of the Russian Federation are of a mixed nature. The directives of the President of the Court regarding measures to speed up the proceedings contradict the independence of judges and violate the principle of legality. In this regard, a proposal was made to exclude this requirement from the system of principles, followed by the addition of the general conditions of preliminary investigation and judicial proceedings.
Keywords:
legislation, judicial review, convergence, reasonableness of deadlines, preliminary investigation, acceleration, justice system, criminal proceedings, principles, historical stages
Human and state
Reference:
Burtseva V.V.
Abortion as a way of violating a woman's reproductive right: a criminal-legal view of the problem
// Legal Studies.
2024. № 9.
P. 17-28.
DOI: 10.25136/2409-7136.2024.9.71752 EDN: FJMWVW URL: https://en.nbpublish.com/library_read_article.php?id=71752
Abstract:
Through the prism of criminal law views, the article raises issues of the concept of a woman's reproductive right and the need to recognize artificial termination of pregnancy (abortion) as a way to realize the said right of a woman, on the one hand, and a way to violate it, on the other. The object of the study is the social relations arising in relation to a woman's reproductive right and its criminal law protection. The subject of the study is the Russian modern criminal legislation, as well as scientific works reflecting the problems raised in the research. The methodological basis is the universal dialectical method of cognition. Along with it, general scientific and private scientific methods were used: dogmatic, hermeneutical, formal-logical, systemic, structural-functional, formal-legal, legal modeling, etc. The results of the study: the analysis showed that the Basic Law of the country, health care and administrative-tort legislation recognize a woman's reproductive right and positively address the issue of its protection. However, the current Russian criminal law lacks a system of norms that would effectively protect a woman's reproductive right. The lack of a systematic approach in the legal field has a negative impact on the unhindered realization of the most important right of a woman. Therefore, additional guarantees of such implementation are needed, criminal law protection can fill in the missing link of the system of Russian law in the analyzed area. The conclusion made as a result of the study: currently, there is an urgent need for legislative consolidation of special norms in which it is necessary to provide for criminal liability for various encroachments on a woman's reproductive right.
Keywords:
pregnancy, the object of the crime, public danger, reproductive law, criminalization, artificial termination of pregnancy, abortion, crime, criminal law protection, demographic policy
Law and order
Reference:
Revenko N.I.
Proving in cases of fraud committed in the way "Your relative got into trouble"
// Legal Studies.
2024. № 9.
P. 29-37.
DOI: 10.25136/2409-7136.2024.9.71792 EDN: DUHVGQ URL: https://en.nbpublish.com/library_read_article.php?id=71792
Abstract:
The subject of the study is the process of criminal procedural proof in cases of fraud committed in the way "Your relative got into trouble". This method of fraud is implemented, as a rule, by a group of persons, and the task of the investigator during the preliminary investigation is to collect, verify and evaluate the totality of evidence indicating a certain form of complicity in the commission of a crime. Based on the analysis of criminal cases, a typical set of ideal and material traces is investigated, which are recorded by the investigator in the appropriate types of criminal procedural evidence provided for in Part 2 of Article 74 of the Criminal Procedure Code of the Russian Federation. This body of evidence gives the investigator grounds to assert that when committing fraud, members of a criminal group plan crimes in advance, assign roles and carry out jointly coordinated activities to implement a criminal plan. The study was conducted using general scientific methods of cognition: analysis, synthesis, deduction, analogy; empirical methods: description, comparison; as well as private scientific methods: legal, sociological, formal legal. The analysis of criminal cases of fraud committed in the way "Your relative got into trouble" allowed us to identify a set of evidence that gives grounds to classify these crimes as committed by a group of persons by prior agreement. At the same time, the paper identifies the problem of inaccessibility to law enforcement agencies of information from the Telegram messenger about the planning and preparation of crimes, which makes it impossible to identify the organizers and other members of the criminal group and does not allow to qualify the actions of accomplices as committed by an organized group. The latter is important from the point of view of bringing to criminal responsibility all members of a criminal group and more precisely qualifying and determining the severity of a crime committed by a group of persons by prior agreement. The above should entail the type and amount of criminal punishment adequate to the activities of an organized criminal group. Only in this case, it is possible to effectively improve the effectiveness of the law enforcement system in preventing and combating this type of fraud.
Keywords:
fraud prevention, proving, the stability of the criminal group, a group of people, organized group, complicity in a crime, investigation, cheater, fraud, punishment
Law and order
Reference:
Chagina E.M., Sisoev Y.E.
Administrative and criminal liability for violation of consumer rights in the legislation of the Russian Federation and the Republic of Belarus: a comparative legal study
// Legal Studies.
2024. № 9.
P. 38-56.
DOI: 10.25136/2409-7136.2024.9.71826 EDN: IEBECU URL: https://en.nbpublish.com/library_read_article.php?id=71826
Abstract:
The Russian Federation and the Republic of Belarus are members of a number of integration associations, such as the Eurasian Economic Union and the Union State, membership in which implies the convergence of national legal regulation in a number of areas in order to create the legal foundations for the functioning of the single economic space. This applies, among other things, to the harmonization of legislation in the field of consumer protection. However, it must be borne in mind that the protection of consumer rights is carried out not only by private legal means, but also by public legal means. This raises the issue of the need and possibility of harmonizing the provisions of national legislation establishing criminal and administrative liability for violation of consumer rights. In addition, a comparative analysis of the norms of criminal and administrative legislation of the two countries in this area is also of interest because it allows us to compare different approaches to regulating public liability for violation of consumer rights and take into account the relevant experience of legal regulation of another country in the development of national legislation. The authors use comparative legal, formal legal methods, the method of analysis and interpretation of normative legal acts as the main methods. As a result of the study, it is concluded that at present, full harmonization of the provisions of national criminal legislation and legislation on administrative offenses establishing liability for violation of consumer rights is not necessary. During the development of national legislation, the experience of another State may be taken into account, but first of all it is necessary to rely on the state of national legal regulation in the field of consumer protection. The conclusion is also substantiated on the formation of different approaches to the establishment of public liability in two countries: if in the Russian Federation the main emphasis is on measures of administrative and legal impact, which led to the development of provisions of legislation on administrative offenses and the decriminalization of a number of acts infringing on consumer rights, then in the Republic of Belarus the legislator proceeds from the need for wider application measures of criminal legal impact, while administrative and legal regulation is fragmented.
Keywords:
Union State, Eurasian Economic Union, public legal liability, administrative offence, administrative law, decriminalization, crime, criminal law, consumer rights protection, harmonization of legislation
JUDICIAL POWER
Reference:
Charikov A.V.
The place and role of a defense lawyer in the process of proof in the investigative type of criminal proceedings
// Legal Studies.
2024. № 9.
P. 57-71.
DOI: 10.25136/2409-7136.2024.9.71644 EDN: BJHNIO URL: https://en.nbpublish.com/library_read_article.php?id=71644
Abstract:
The subject of the study is the participation of a defense lawyer in the proof process. There have been disputes for a long time regarding the reform of the existing procedure of criminal proceedings, in which a defense lawyer, according to Article 86 of the CPC of the Russian Federation, has the right to collect evidence. However, in practice, these provisions of the law face resistance from the law enforcement officer, which is caused, as the author believes, by the historical type of domestic criminal proceedings, in which objective truth and the predominance of public interest over private interests occupy key positions. Special attention is paid to the historical stages of the formation of Russian criminal proceedings, which, starting with the Statute of Criminal Proceedings, has fixed the investigator as a key figure of proof, while the court only checks the evidence collected by him "for strength". The domestic criminal process has developed as a search-type production, where three functions – prosecution, defense and resolution of the case are combined by one person – the investigator. The author concludes that in such a system of criminal proceedings, a lawyer cannot collect evidence, but his activities in the process of proving must be streamlined. In this regard, it is proposed to amend the current legislation defining the status and types of materials used in proving. Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation should be abolished. It is proposed to formulate Article 86.1 of the Code of Criminal Procedure of the Russian Federation "The use of materials of advocacy in proving", which provides for the possibility of a lawyer to collect information by: requesting information from organizations upon request, interviewing a person with his consent, involving a specialist. In addition, it is necessary to indicate in the CPC of the Russian Federation that all materials collected by the lawyer act in the evidence system as "other documents", in connection with which the expert's conclusion is subject to exclusion from clause 3.1 of Part 2 of Article 74 of the CPC of the Russian Federation.
Keywords:
advocacy materials, other documents, expert opinion, interviewing a person, proof process, Charter of criminal proceedings, investigative process type, criminal trial, defense lawyer, proof
Law and order
Reference:
Rushanyan D.A.
Criminal law regulation of the responsibility for the involvement of minors in the commission of crimes and other anti-social actions: historical aspects
// Legal Studies.
2024. № 9.
P. 72-84.
DOI: 10.25136/2409-7136.2024.9.71638 EDN: BMTRRK URL: https://en.nbpublish.com/library_read_article.php?id=71638
Abstract:
The subject of the study is the historical process of development of the criminal law regulation of the institution of responsibility for involving minors in committing crimes and other anti-social actions. The relevant legal acts adopted in the pre-revolutionary, revolutionary and post-revolutionary periods of the development of domestic criminal legislation are used as research materials. The purpose of the work is to study the historical aspects of the criminal law regulation of the institution of responsibility for involving minors in committing crimes and other antisocial actions. The objectives of the study: to substantiate the need and importance of analyzing the historical aspects of criminal law regulation of responsibility for involving minors in committing crimes and other antisocial actions; to analyze legal acts, starting with the Russian Truth and ending with the current Criminal Code of the Russian Federation, in order to identify in their content the norms regulating responsibility for said involvement; to trace the origin formation, development and optimization of the institute in this field. The author uses a universal dialectical method of cognition, as well as a set of general scientific and special scientific methods, such as deduction, systemic, comparative legal, formal legal and historical. The author's special contribution to the research of the topic is the formation of historical and legal periodization, consisting of three periods. It is concluded that during the transition from one historical period to another, the criminal law norms on the involvement of minors in the commission of crimes and other anti-social actions are quantitatively expanded, they receive sufficient development, a certain order in the arrangement and communication with each other, which ultimately leads to the fact that the modern period is characterized by a stage of development and optimization of the institution responsibility for these criminal acts. The scientific novelty of the research topic is to consider the historical aspects of the criminal law regulation of responsibility for involving minors in committing crimes and other anti-social actions through the prism of the institute.
Keywords:
institute of criminal law, regimentation, criminal law, historical aspects, antisocial actions, criminal liability, crimes, involvement of minors, minors, involvement
Law and order
Reference:
Laikova E.A., Rogova E.V.
Some problems of the application of norms establishing liability for fictitious registration and fictitious registration of foreign citizens and stateless persons
// Legal Studies.
2024. № 9.
P. 85-95.
DOI: 10.25136/2409-7136.2024.9.36703 EDN: ARRBXW URL: https://en.nbpublish.com/library_read_article.php?id=36703
Abstract:
Special attention is paid to the issues of application of the norms establishing criminal liability for crimes in the sphere of registration and migration accounting of foreign citizens and stateless persons. The analysis of the norms establishing criminal liability for crimes against the procedure for registration and migration accounting revealed the existence of problems in their application, as well as the fact that they do not fully meet the requirements of the current criminal situation related to fictitious registration of citizens and registration. Special attention is paid to the problems of qualification of several facts of committing a crime as a single ongoing one or as a set of crimes, determination of the subjective side, differentiation of the crimes under consideration from each other, as well as from other related crimes, qualification in combination with other crimes, as well as qualification of actions of other persons assisting in fictitious registration and fictitious registration. The novelty of the study lies in the fact that the criteria for distinguishing the studied crimes from related crimes, qualification in combination with other crimes accompanying them are proposed. Crimes provided for in Art. 3222 and 3223 of the Criminal Code of the Russian Federation should be distinguished from related crimes by their immediate object, characteristics of the objective side and characteristics of the subject. If the crimes provided for in Articles 3222 and 3223 of the Criminal Code of the Russian Federation are special in relation to other criminal law norms (for example, Articles 285, 286 of the Criminal Code of the Russian Federation), then the unlawful acts are qualified only under a special norm in accordance with the provision set out in Part 3 of Article 17 of the Criminal Code of the Russian Federation. When the crimes in question are committed by officials, state or municipal employees, they can also be qualified in combination with other crimes if there are corresponding characteristics of such crimes, such as, for example, official forgery, petty bribery, etc.
Keywords:
criminal liability, qualification problems, , fictitious registration,, migration registration, foreign citizens, stateless persons, intermediaries, a single intent, combination, false information
Law and order
Reference:
Kitsing V.A.
The concept and types of crimes committed by contract executors in the field of state and municipal procurement
// Legal Studies.
2024. № 9.
P. 96-108.
DOI: 10.25136/2409-7136.2024.9.44061 EDN: AHILLN URL: https://en.nbpublish.com/library_read_article.php?id=44061
Abstract:
The subject of the study is criminal acts committed by contract executors in the field of public procurement. The danger of these crimes lies in causing damage to public interests related to the functioning of State bodies and embezzlement of budget funds. At the same time, the interest of bona fide contract executors also suffers due to the inability to make a profit from participating in the auction. In addition, criminal acts committed by contract executors in the field of public procurement are latent and widespread. However, to this day, the concept and types of these crimes have not received any official regulation and are poorly developed by science. The purpose of the study is to classify the crimes of contract executors in the field of state and municipal procurement in accordance with their common characteristics and formulate a universal definition for the latter. The methodological basis of the research was made up of general scientific and private scientific methods, in particular analysis, synthesis, logic, deduction, induction, as well as the method of legal statistics. The scientific novelty of the study lies in the fact that the author, during the analysis of judicial practice, identified the main criminal acts committed by contract executors in the field of state and municipal procurement. After that, by generalization and systematization, the author's classification of the criminal acts under consideration was created, which includes two types, one of which is divided into subspecies. In addition, the author established criteria for the relevance of criminal acts to the specified types and subspecies of the developed classification. And, finally, on the basis of the identified range of crimes committed by contract executors in the field of state and municipal procurement, a common concept for the latter was formulated.
Keywords:
concept of crime, criminal countermeasures, municipal procurement, restriction of competition, corruption, bribe, fraud, public procurement, contract system, state procurement
Law and order
Reference:
Vanyan D.N.
Differentiation of responsibility for crimes against the person: evolution in Russian criminal legislation
// Legal Studies.
2024. № 9.
P. 109-123.
DOI: 10.25136/2409-7136.2024.9.71683 EDN: APTUDK URL: https://en.nbpublish.com/library_read_article.php?id=71683
Abstract:
The subject of the study is to consider the issues of the evolution of Russian criminal legislation in terms of the differentiation of responsibility for crimes against the person. As the materials of the study, criminal law monuments of national history were selected, in the content of which the differentiation of responsibility for crimes against the person was carried out. The article presents a historical and legal review of the main sources of criminal law of the X-XX centuries in terms of the approach reflected in them to the differentiation of responsibility for crimes against the person and analyzes the formation of an appropriate mechanism of criminal law protection. Using the example of the monuments of Russian criminal law of the X–XX centuries, the features of the construction of qualified and privileged elements of crimes against the person, the ways of their construction and presentation in the text of the criminal law are considered. To conduct an objective and comprehensive review of the chosen topic, the article used such general scientific and private scientific methods as analysis, generalization, historical, formal legal, comparative legal. The novelty of the study lies in the fact that, taking into account the retrospective approach, the historical experience of the formation of the institution of differentiation of criminal liability for attacks on life, health, freedom, honor, dignity and other protected values is traced and the process of consistent regulatory and legal registration of differentiating criminal liability features is reflected. In conclusion, the author concludes that the process of constructing differentiating criminal liability features dates back to the legislation of Ancient Russia, and their subsequent regulation maintained a certain continuity throughout the development of Russian criminal legislation. The differentiation of responsibility, despite its long history, currently remains the main method of criminal law policy, the application of which, including to the crimes under consideration, requires further reflection and improvement.
Keywords:
qualifying signs, privileged features, differentiation of criminal liability, differentiation, sexual crimes, honor and dignity, crimes against health, murder, crimes against the person, personality
Jurisprudence
Reference:
Poluyan D.A.
Definition of the concept of "self-employed" and its historical development
// Legal Studies.
2024. № 9.
P. 124-141.
DOI: 10.25136/2409-7136.2024.9.71766 EDN: AELRBA URL: https://en.nbpublish.com/library_read_article.php?id=71766
Abstract:
The subject of the study is the evolution of the concept of "self-employed" in Russia, starting with its appearance in the scientific literature in the 90s and up to the present state. The study seeks to trace the dynamics of changes in the definition of "self-employment" and "self-employed" under the influence of various factors, including political, legislative and scientific trends. The purpose of the study is not only to establish the chronology of the formation and change of the concept, but also to analyze the ways of its application in practice, in particular, in court decisions. The analysis presented in the paper is aimed at deepening the understanding of the concept of "self-employed" in different contexts and identifying contradictions in its application. This helps to increase the effectiveness of law enforcement practice and improve future theoretical developments in this area. The research methodology consists of general scientific and specific scientific methods of cognition. The following methods were used: dialectical, logical, historical, formal-legal, and hermeneutical. The novelty of the research lies in a comprehensive analysis of the evolution of the concept of "self-employed" in Russia, covering various contexts of its application. The research is not limited to simply tracing the chronology of the appearance and change of the term, but also deeply analyzes its interpretation in sociological and legal works, legal acts of the executive branch, laws, decisions of the Constitutional Court and judicial practice, as well as the reasons for the appearance of certain connotations. Special attention is paid to how different interpretations of this concept are mixed in court decisions. The conducted research allows us to draw the following conclusions: The concept of "self-employed" in Russia does not have a single definition, which leads to ambiguity in its application in practice. Historically, the definition of "self-employment" has changed from a broad interpretation (type of employment of people) to a narrower one (tax regime). Judicial practice demonstrates inconsistency in the interpretation of the concept of "self-employed", which complicates law enforcement and requires timely correction.
Keywords:
individual labor activity, law enforcement, employment, tax regime, entrepreneurial activity, concept, definition, self-employed, Self-employment, history of legal regulation