Reference:
Budilina E.I..
The possibility of identifying signs of a person's personality by his digital identity
// Legal Studies.
2024. № 8.
P. 82-93.
DOI: 10.7256/2409-7136.2024.8.71508 EDN: SSBFDG URL: https://en.nbpublish.com/library_read_article.php?id=71508
Abstract:
In this article, the term "digital personality", "digital double", which is new for forensic science, is put forward and the definition of these terms is given. The possibilities of identifying a user by his digital identity in the virtual space are considered. A proposal is put forward to develop methodological recommendations for identifying signs of a person's personality based on his digital identity. The algorithm of actions of law enforcement officers in identifying signs of a digital identity on the Internet is also explained. The expert examinations that are subject to mandatory appointment in the investigation of such types of crimes have been identified. In the course of scientific study of the problem of the possibilities of identifying signs of a user's identity by his digital identity, a step-by-step algorithm of actions of law enforcement officers for an effective process of investigation and disclosure of such crimes is proposed. Methods of analysis, synthesis, deduction and induction were used. The research materials are normative legal acts of the Russian Federation and materials of criminal cases related to crimes committed on the Internet. In our opinion, the scientific novelty lies in the fact that we propose the development and application of a forensic technique for detecting human signs using "digital personality doubles" in the Internet space, as this issue is becoming more relevant today. The method of searching for a "digital personality" is a complex and multifaceted process that requires certain knowledge and skills, as well as the joint work of law enforcement agencies and moderators of various services on the Internet. Even more difficult is the conduct of scientific research aimed at establishing the digital identity of the human physical body. Currently, most crimes are committed using digital technologies, therefore, such a technique is becoming necessary for law enforcement agencies and cybersecurity specialists. Given these conditions, the question arises about the forensic aspects of establishing a "digital identity". The method of identifying signs of a person's identity based on his digital identity is a comprehensive approach that includes the development of an algorithm for the investigator's actions, conducting user data checks, creating a database and organizing cooperation with Internet service providers. Its purpose is to accurately build an algorithm for the investigator's actions to effectively investigate and solve crimes and protect users from potential crimes.
Keywords:
The Internet, services, appointment of examinations, online dating, interaction with moderators, Internet service provider, identification, the algorithm of actions, digital twin, digital identity
Reference:
Bosyk O.I..
Consequences of non-payment of a share in the authorized capital of a limited liability company at its establishment
// Legal Studies.
2024. № 8.
P. 1-12.
DOI: 10.7256/2409-7136.2024.8.71361 EDN: NBIFWN URL: https://en.nbpublish.com/library_read_article.php?id=71361
Abstract:
The purpose of the study is to develop and construct new theoretical provisions on the consequences of non-payment of a share in the authorized capital of a limited liability company (hereinafter referred to as the company) at its establishment. Tasks: to identify the importance of the formation of the company's authorized capital at its establishment, to establish a causal relationship between the fulfillment of the obligation to pay a share in the authorized capital and the loss of participant status, to determine the legal nature of liability for violation of the obligation by the founder. Research hypothesis: non-payment of a share in the authorized capital of a limited liability company at its establishment entails the involvement of the founder in pre-corporate liability.The object of the study is the norms containing the consequences of non-payment of a share in the authorized capital of a limited liability company at its establishment. Research methods: dogmatic, historical, comparative legal. The dogmatic method made it possible to understand and explain the meaning of the law on the consequences of non-payment of a share in the authorized capital of a company at its establishment. The importance of dogmatics for civil law is difficult to overestimate due to the fact that it allows for a detailed analysis of a complex rule of law. The historical method was used in the study of the formation of norms on the consequences of non-payment of a share in the authorized capital of a company at its establishment, taking into account current events in the country. The comparative legal method was used to analyze the norms of Russian and German legislation. The choice of the country of foreign law was determined by the history of the development of civil law and observance of the traditions of Roman law. Results: the formation of the authorized capital of the company at its establishment has a complex legal structure; there is a direct causal relationship between the payment of a share in the authorized capital by the founder and his right to participate in the management of a limited liability company; payment of a share in the authorized capital of the company at its establishment is a transaction. The consequence of non-payment of a share in the authorized capital when establishing a limited liability company is the onset of pre-corporate liability, which consists of property and non-property. The first is to apply a penalty to such a person in accordance with the provisions of the establishment agreement. The second is in the absence of the actual possibility of exercising the rights of participation at the request of other members of the society.
Keywords:
legislation, duty, fraction, civil law, corporation, the consequences, founder, Share capital, legal relations, responsibility
Reference:
Chernyshenko I.G., Barkova A.V..
Civil law qualification of personal data
// Legal Studies.
2024. № 6.
P. 56-69.
DOI: 10.7256/2409-7136.2024.6.70419 EDN: GWQCQQ URL: https://en.nbpublish.com/library_read_article.php?id=70419
Abstract:
The author of the article considers the civil law nature of personal data, focusing on their qualification in the context of the object of civil legal relations. The boundary of distinction between private and public law in the context of processing and protection of personal data is also drawn. The purpose of this study is to determine the place of personal data in civil law, including civil legislation, as well as to determine to what type of object of civil legal relations should be attributed such legal phenomenon as personal data. The novelty of this article lies in the author's proposed concept of a comprehensive legal regulation of processing and protection of personal data. In addition, the author brings for discussion the issue of the possibility of introducing a new object of civil legal relations, which expands the existing legal tools for the settlement of issues related to personal data. While writing the article such methods were used as: theoretical-predictive, formal-legal, system-structural and method of legal modeling. In the conclusion the author of the article states the necessity of fixing personal data in civil legal relations. The introduction of such an object as personal data into civil law is an important step in modern society, due to the accurate and effective regulation of their circulation and protection. The inclusion of this aspect creates a basis for judicial application and resolution of disputes related to the use of personal data in civil relations. In addition, it contributes to the protection of the rights of data subjects and ensures transparency and predictability of their legal regime. Thus, the need to qualify personal data in civil law not only corresponds to modern trends in the development of society, but also contributes to its sustainable functioning in the digital economy.
Keywords:
regulatory mechanism, legal defence, public law, private law, civil turnover, intangible good, legal regime, personal data, civil relations, cross-sectoral nature
Reference:
Shurlyakov G.S..
Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations
// Legal Studies.
2024. № 6.
P. 44-55.
DOI: 10.7256/2409-7136.2024.6.70509 EDN: LRDKJZ URL: https://en.nbpublish.com/library_read_article.php?id=70509
Abstract:
The article is devoted to the study of theoretical and practical problems of including capitalized payments in compensation for harm to a citizen in the amount of subsidiary liability of persons controlling the debtor in the event of the insolvency of a legal entity; the relevance of the research is due to the complexity of the subject, which is the legal provisions of bankruptcy law on the procedure, methods of calculation and conditions for including capitalized payments as part of the amount of subsidiary liability of the persons controlling the debtor; research methodology – a dialectical method of cognition within the framework of a materialistic approach in combination with private scientific methods of studying social and legal phenomena: analysis and synthesis, observation and comparison; based on the study, the conditions for including capitalized payments in the amount of subsidiary liability of the persons controlling the debtor were determined and characterized; the novelty of the study lies in the substantive analysis of the issues of accounting for capitalized payments when establishing the amount of subsidiary liability in the absence of corresponding rules in bankruptcy law; the author came to the following conclusions: due to the fact that capitalized payments in a bankruptcy case of a legal entity have a special legal nature, due to their calculation for the future “until the citizen survives” and not earlier than the date of introduction of the bankruptcy procedure, the possibility their inclusion as part of the amount of subsidiary liability depends on the basis on which the person is brought to subsidiary liability: for the impossibility of fully repaying the claims of creditors or for failure to submit (late submission) of the debtor’s application, which, due to an insufficiently clear definition, require interpretation by the legislator and the Supreme Court Russian Federation.
Keywords:
compensation for damages, register of creditors' claims, controlling debtor, time payments, subsidiary civil liability, capitalised payments, bankruptcy of a legal entity, liquidation of a legal entity, personal injury, amount of liability
Reference:
Sukhareva K.S..
Topical issues of early termination of powers of deputies of representative bodies of municipalities for non-compliance with anti-corruption legislation
// Legal Studies.
2024. № 3.
P. 127-141.
DOI: 10.25136/2409-7136.2024.3.70140 EDN: CHEYOY URL: https://en.nbpublish.com/library_read_article.php?id=70140
Abstract:
The early termination of the powers of deputies of representative bodies of municipalities as a measure of anti-corruption security has a high preventive potential. However, law enforcement practice indicates that deputies of representative bodies of municipalities abuse their rights, which is expressed, in particular, in avoiding the application of a measure of early termination of powers in relation to deputies who violated anti-corruption legislation. The current situation is largely determined by the consolidation in legislation of the exclusive competence of the representative body of the municipality to make a decision on the early termination of the powers of a deputy. There are often cases when, if there are grounds for early termination of the powers of a deputy due to a clear violation of the provisions of anti-corruption legislation, a representative body applies a less severe measure of responsibility or does not apply any measures at all. During the research, the author used the general scientific method of dialectical cognition, as well as private scientific methods: system-structural, formal-logical (deduction, induction), etc. According to the results of the study, the author came to the conclusion that one of the ways to solve the current situation is the legislative consolidation of the early termination of powers of a deputy of a representative body of a municipal formation in court. The Judicial Board for Administrative Cases of the Supreme Court of the Russian Federation in one of its rulings pointed to the possibility of early termination of the deputy's powers in court. At the same time, the question remains open about the need for a subsequent decision on the early termination of the powers of a deputy by a representative body, by virtue of the exclusive competence assigned to it by law, if the powers of a deputy were terminated prematurely by a court. The legislative consolidation of the measure in question in court will resolve existing issues about "judicial activism" and increase the effectiveness of its application.
Keywords:
decision of the representative body, deputy, abuse of the right, anti-corruption standards, anti-corruption security, early termination of powers, municipality, representative body, judicial procedure, municipal position
Reference:
Sotnikov K.I..
On the possibilities of introducing transcription into the practice of interrogation at the stage of preliminary investigation of crimes
// Legal Studies.
2023. № 11.
P. 66-75.
DOI: 10.25136/2409-7136.2023.11.68738 EDN: QZFFFQ URL: https://en.nbpublish.com/library_read_article.php?id=68738
Abstract:
The subject of the study is the modern forensic investigative practice of recording the testimony of interrogated persons at the preliminary investigation, which indicates a tendency to increase the volume of interrogation protocols being compiled. The object of the study is the regularities of the procedure for recording the testimony of the interrogated persons. It is noted that the preparation of the interrogation protocol is the most time-consuming final stage of this investigative action. Analysis of scientific publications in recent years shows that forensic scientists focus on the tactics and psychology of interrogation. As part of the forensic tactics of interrogation, the issues of the specifics of the use of additional means of fixation in the form of audio-video recordings and requirements for the content of the interrogation protocol are also considered. The existing procedure for recording the testimony of interrogated persons in the typewriter mode remains acute. The novelty of the research lies in the author's proposal to introduce modern computer technologies and artificial intelligence into the practice of drawing up interrogation protocols that allow converting oral speech into text. We are talking about automatic speech recognition and the conversion of a speech signal into digital information in the form of text (transcription of oral speech). Currently, transcription is widely used in various spheres of human activity. It is noted that it is permissible to use transcription technology from the standpoint of criminal procedural regulation of interrogation and confrontation.The use of transcription means will allow the investigator to focus on communicating with the interrogated person, achieve psychological contact, track testimony, use tactical techniques, etc. Modern software allows the introduction of the specified technology of recording the testimony of interrogated persons into the practice of interrogation.
Keywords:
converter, clerical work, speech, rationalization, protocol, proof, indications, recording, programming, neuro-linguistic
Reference:
Vronskaya M.V., Ekhlakova Y.V..
Problematic aspects of the practice of reducing penalties in Russian civil law
// Legal Studies.
2023. № 11.
P. 14-25.
DOI: 10.25136/2409-7136.2023.11.68914 EDN: DPTTRQ URL: https://en.nbpublish.com/library_read_article.php?id=68914
Abstract:
The established practice of applying Articles 330-333 of the Civil Code of the Russian Federation does not always contribute to the effective use of penalties to ensure the fulfillment of obligations. This may be due to the lack of a legal definition of "lost profit" in the law, clear criteria for the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation, with the presence in Article 330 of the Civil Code of the Russian Federation of the evaluation category "apparent disproportionality", which the courts interpret differently, and sometimes bypassing explanations on this score of higher judicial instances. Legal uncertainty is created by the norms of Parts 1 and 2 of Article 333 of the Civil Code of the Russian Federation, which do not allow making an unambiguous conclusion about the legality of applying their provisions to reduce the legal penalty to persons engaged in entrepreneurial activity. The subject of scientific research is to identify problematic issues of law enforcement practice to reduce the penalty in accordance with Article 333 of the Civil Code of the Russian Federation. The paper uses formal legal and comparative legal analysis of judicial practice in order to formulate the author's conclusions regarding the subject of the study.Through the application of this methodology, it was established that the courts are based on the norms of Articles 330-333, 394 of the Civil Code of the Russian Federation, explanations of the Plenum of the Supreme Court of the Russian Federation No. 7 of 03/24/2016, No. 81 of 12/22/2011, acts of the Constitutional and Supreme Arbitration Court of the Russian Federation, as well as on the provisions of federal laws and other regulatory legal acts, however, the practice of applying Part 1 of art. 333 The Civil Code of the Russian Federation in relation to persons engaged in entrepreneurial activity is dichotomous, there is no uniformity. According to the results of the study, problems were identified, solutions were proposed, expressed in the consolidation in Article 333 of the Civil Code of the Russian Federation of clear grounds (criterion) for reducing the penalty in order to avoid excessively broad judicial discretion, and in fact arbitrary judicial interpretation of the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation.
Keywords:
securing obligations, creditor, entrepreneurial activity, judicial discretion, Civil responsibility, arbitrage practice, proportionality, downsizing, penalty, legal problems
Reference:
Aliev T.F..
Issues of countering crimes committed using IT technologies
// Legal Studies.
2023. № 10.
P. 100-114.
DOI: 10.25136/2409-7136.2023.10.44173 EDN: BDIKBI URL: https://en.nbpublish.com/library_read_article.php?id=44173
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Abstract:
The subject of this study is the specifics of countering crimes committed using IT technologies. The purpose of the work is to consider and resolve certain aspects of countering IT crimes. The research methodology is based on general scientific and private scientific methods of cognition - dialectical, logical, statistical, comparative legal, formal legal. The relevance of the chosen topic has both theoretical and practical aspects of significance in modern realities. Thus, in the context of the informatization of society, it is important to protect information security from cyber threats. Unfortunately, in the modern world, information technologies are used not only by law-abiding citizens, which raises the question of ensuring national cybersecurity. To date, this type of crimes is interstate in nature due to the large number of their commission. Cybercrime is growing on a large scale, and this is confirmed by the following statistics: from 2014 to 2022, an almost fifty-fold increase in IT crimes was recorded (10 thousand against 510 thousand cybercrimes). The author of the presented article came to the conclusion that countering IT crimes should be carried out taking into account scientific and technological progress. Studying international experience, analyzing modern domestic methods of combating this category of crime, the author became convinced that it is important to use digital technologies in countering IT crimes, the use of which will help reduce both the number of commission of this kind of criminal acts and increase the percentage of detection of this category of crime. The author illustrates examples of how artificial intelligence can serve as a "faithful assistant" in the domestic practice of countering IT crimes. In addition, the priority is to improve the knowledge and skills of law enforcement officers to counteract this category of crime, at the same time it is necessary to carry out preventive measures to inform the population about the main criminal schemes of intruders.
Keywords:
priority direction, dynamic character, the role of a specialist, artificial intelligence, scientific and technological progress, prevention, improvement of activities, counteraction, IT technologies, cybercrime
Reference:
Markov B..
Personal Data Protection Issues in the Realm of Telemedicine. Blockchain, Civil Liability and other Methods to Overcome Them.
// Legal Studies.
2023. № 4.
P. 1-10.
DOI: 10.25136/2409-7136.2023.4.40519 EDN: ONXLKA URL: https://en.nbpublish.com/library_read_article.php?id=40519
Abstract:
The subject of this article is the legal regulation of personal data protection in the field of medical care with the use of telemedicine technologies and digital healthcare. Its purpose is to identify and analyze the problems of personal data protection and to find ways to overcome them. The relevance of the work is due to the presence of a large number of leaks of personal data, gaps in regulation, and the lack of an effective system of norms aimed at preventing the compromise of patient information. The author examines the main aspects of regulating the procedure for working with the patient's consent to the processing of personal data. Much attention in the article is paid to blockchain technology, traditionally considered in the Russian legal literature only within the framework of the use of cryptocurrencies. The article also analyzes the issues of the application of civil liability measures for offenses in the field of personal data protection of recipients of telemedicine services.The author criticizes the unreasonably strict regulation of the procedure for obtaining the patient's consent to the processing of personal data by a medical organization, emphasizes the need to introduce a flexible form of consent. This will reduce the amount of information at risk of leakage. In addition, the idea of creating a mechanism for revoking the patient's consent to the processing of personal data and securing the patient's right to demand from the medical organization the termination of their processing is put forward. The paper points to the prospects for the use of blockchain in the field of telemedicine, including for the protection of personal data. A regulatory division of blockchain systems into centralized and decentralized ones is proposed, suggesting their different regulation in relation to the protection of confidential information. In addition, the article notes the lack of elaboration of the norms on civil liability for offenses in the field of working with personal data in telemedicine, it is proposed to tighten regulation in order to increase the level of protection of patients' rights.
Keywords:
telemedicine consultation, healthcare digitalization, healthcare, data protection, blockchain, telehealth technologies, civil liability, personal data, e-health, telemedicine
Reference:
Funtov D.A..
Problems of Forensic Economic Expertise in Challenging Transactions with Intellectual Property in the Bankruptcy Case of a Bank
// Legal Studies.
2023. № 2.
P. 11-24.
DOI: 10.25136/2409-7136.2023.2.39736 EDN: HTIMRX URL: https://en.nbpublish.com/library_read_article.php?id=39736
Abstract:
The subject of the study is the theoretical and methodological foundations of forensic economic expertise. The object of the study is judicial economic expertise when challenging transactions in bank bankruptcy cases. The author examines in detail such aspects of the topic as forensic economic expertise, the classification of which was analyzed on the basis of existing regulations, problems were identified and conclusions were drawn. The role of expertise in the recognition of transactions, the subject of which is a trademark or domain name, is invalid in the framework of the consideration of bank insolvency cases. Particular attention is paid to the importance of forensic economic expertise, due to the impossibility of making the right decision without its implementation in bank bankruptcy cases. The main conclusions of the study are proposals for the introduction of the concept of complex expertise, the elimination of gaps in legislation that have arisen due to the fact that the legislative institute lags behind the development of expert science and each expert performs conclusions due to his knowledge and experience, generating a variety of approaches to the assessment of the object. The article deals with the problems of expertise, both in bankruptcy cases of credit institutions, and in general at the level of legislative regulation. Based on the results of the conceptual analysis of the forensic economic examination, having considered a particular example from judicial practice, taking into account the attribution of an insolvent bank to a special category of subjects, the author made proposals to improve the institute of expertise.
Keywords:
invalid transaction, deal, expert, economic expertise, insolvency, bankruptcy, bank, credit institution, domain name, trademark
Reference:
Antipova K..
Issues of Legal Qualification of Big Data as Digital Assets
// Legal Studies.
2022. № 11.
P. 45-61.
DOI: 10.25136/2409-7136.2022.11.38928 EDN: VYZDVX URL: https://en.nbpublish.com/library_read_article.php?id=38928
Abstract:
The article examines the legal nature of digital assets and big data, provides a classification of digital assets, and provides a comparison and analysis of digital assets and big data. The article defines the concept and features of digital assets. The subject of the research in this article is the legislation of the Russian Federation in the field of artificial intelligence, digital assets, the legislation of the European Union in the field of big data regulation, the judicial and arbitration practice of the Russian Federation in the field of personal data, regulatory legal acts, acts of state regulation of the Russian Federation and foreign countries in the field of data processing, use, transmission and legal doctrine in the field of research on the nature of digital assets and big data. The relevance of the study is due to the fact that in Russia there is no conceptual unity in relation to digital assets and big data, the correlation of these concepts has not been fully investigated. The purpose of the study is to clarify the qualification of big data as digital assets. The objectives of the research are to define the concept and features of digital assets and big data, the relationship between the concepts of digital assets and big data, and the definition of ways to qualify big data as digital assets. As a result of the study, the concept and features of digital assets are defined, the concept and features of big data are defined. Digital assets are defined as a collective category of objects characterized by signs of digital form, virtuality of the nature of the asset, turnover, economic value, extraterritoriality. The conclusion reflects that big data can act as a digital asset, if the result of big data matches the characteristics of digital assets.
Keywords:
digital financial assets, digital property, digital rights, information society, information technology, artificial intelligence, legal regulation, big data, Digital assets, data arrays
Reference:
Berdnikova A.A..
Legal Regulation of State Financial Support for Agricultural Producers on the Grain Market of the Russian Federation
// Legal Studies.
2022. № 11.
P. 62-73.
DOI: 10.25136/2409-7136.2022.11.39199 EDN: VRJOSB URL: https://en.nbpublish.com/library_read_article.php?id=39199
Abstract:
Author studies the measures and programs of state financial support provided to agricultural producers, as small and medium-sized businesses, in the grain market of the Russian Federation, and make proposals for its optimization. During the study were used methods of analysis, synthesis, generalization and formal legal thinking. As result of the research author concludes that financing of small and medium-sized businesses in Russia is still developing with significant state support. Agriculture, due to its characteristics, is subject to increased state regulation. As a result of the study, it is noted that today there are indeed many stimulating and compensatory measures of state financial support. However, there are a few problems in the implementation of this mechanism. As a result of the study, measures are proposed to improve the mechanism of financial support and increase the availability of financing for agricultural producers, in particular regions and remote areas. The theoretical and / or practical significance is determined in the generalization, conclusions and proposals that can be used for subsequent work in the direction in order to improve this institution, as well as in rulemaking by the legislative bodies of the government of the Russian Federation. The novelty of the work lies in the proposal to conduct a diagnostic study of the state of financing of agriculture, in particular grain markets, with a view to the possible implementation of some successfully implemented financing programs. As conclusion, author presented proposals for improving state support measures to increase the availability of financing for agricultural producers, in particular the regions and remote areas of the country.
Keywords:
government interventions, entrepreneurial activity, small, medium-sized businesses, profitability level, subsidies, agricultural producers, grain, grain market, availability of financing, state financial support
Reference:
Sukalo V.A..
On the Issue of Leasing Land Plots in State or Municipal Ownership to Peasant (Farmer) Farms and Agricultural Organizations Participating in State Support Programs in the Field of Agricultural Development Without Bidding
// Legal Studies.
2022. № 10.
P. 54-65.
DOI: 10.25136/2409-7136.2022.10.38898 EDN: DPPOVR URL: https://en.nbpublish.com/library_read_article.php?id=38898
Abstract:
Based on the analysis of paragraphs 12, Part 2 of Article 39.6 of the RF CC, paragraph 8 of Article 10 of the Federal Law "On the Turnover of Agricultural Land", judicial practice, it is concluded that the currently existing legal norms do not provide peasant (farmer) farms and agricultural organizations participating in state support programs in the field of development agriculture, a real opportunity to lease publicly owned land plots for farming or other activities related to agricultural production without bidding due to the unjustified application of the procedure established by Article 39.18 of the RF CC, which carries a significant risk for already concluded lease agreements to be invalidated and, in this regard, does not allow us to talk about the stability of civil turnover and the protection of the interests of participants in civil legal relations. The conclusion is substantiated that it is necessary to amend Clause 8 of Article 10 of the Federal Law "On the Turnover of Agricultural Land" in terms of excluding references to Article 39.18 of the RF CC. In order to exclude competition with persons who are not participants in state programs and to exercise the right to receive plots without bidding of agricultural organizations, it is proposed to prescribe a detailed procedure for identifying interested parties in the new Article 39.18.1 of the RF CC, similar to the procedure established in Article 39.18 of the RF CC, but only with respect to the procedure for considering applications of peasant (farmer) farms and agricultural organizations participating in state support programs in the field of agricultural development, on the provision of land plots in state or municipal ownership for lease without bidding.
Keywords:
collisions, judicial practice, invalidity, auction, bidding, state support program, agricultural organization, peasant farming, rent, spaces
Reference:
Muratov R.A..
Taxpayer integrity in US law enforcement practice.
// Legal Studies.
2022. № 4.
P. 1-12.
DOI: 10.25136/2409-7136.2022.4.37629 URL: https://en.nbpublish.com/library_read_article.php?id=37629
Abstract:
The subject of the study is the concept of taxpayer integrity in the US law enforcement practice, in particular, the approach of the US tax authorities and the US Tax Court in applying this concept when considering tax disputes. When considering this issue, it was revealed that the signs of the taxpayer's integrity are fixed in the US Internal Revenue Code in Article 1.6664-4. In accordance with the provisions of this article, no fine may be imposed in accordance with section 6662 in respect of any part of the underpayment if the taxpayer proves that there was a reasonable reason for such part and that the taxpayer acted in good faith. В В В The main conclusion of the study is that the existence of a legal norm defining the signs of a taxpayer's good faith in the US tax legislation allows taxpayers to avoid a fine in case of incomplete fulfillment of tax obligations by providing a reasonable reasonable reason. In addition, we can conclude that when determining the legality of accepting expenses for the purpose of reducing the income tax base, the US Tax Court takes into account the nature of the appearance of these expenses (case Neonatology Assocs., P.A. v. Commissioner - 115 T.C. 43, 99 (2000), aff'd, 299 F 3d 221 (3d Cir. 2002))
Keywords:
US Tax Court, US Tax Law, integrity of taxpayers, execution of the tax obligation, tax authorities, taxpayers, tax law, the principle of good faith, Tax disputes, tax legislation
Reference:
Lekanova E.E..
Implementation of professional activity as an alternative to guilt in civil law: theory and practice
// Legal Studies.
2022. № 2.
P. 18-32.
DOI: 10.25136/2409-7136.2022.2.32678 URL: https://en.nbpublish.com/library_read_article.php?id=32678
Abstract:
The subject of this research is the legal norms, doctrinal provisions and case law on the conditions of civil liability. The relevance of this topic is determined by the tendency to expand the list of cases of strict liability detected in comparison the current and Soviet legislation. However, the principle observed by the legislator in transferring cases from the "regime of fault liability" to the "regime of strict liability" is still a puzzle. For the purpose of systematicity of legislation and reasonable claim of strict liability, such principle should be captured in legislation. The goal of this research lies in determination of the condition of civil liability without fault. Using the method of legal induction, the author formulates the conclusion on the condition of strict liability based on the analysis of separate court decisions and legal norms dedicated to various cases of strict liability. A number of cases of civil liability without fault specified in the law are substantiated by a different (instead of fault) condition of liability, namely the implementation of professional activity that entailed civil violation. If the case of liability without fault specified in the law does not contain any other condition of liability alternative to fault, the corresponding rule should be excluded from the law due to groundlessness (for example, the rule on strict liability for obligations of the trustee in relation to individuals who are not the subjects of professional activity in this sphere; the rule on compensation for moral damages irrespective of guilt for distribution of discrediting information by a person who is not a professional distributor of mass media products). The author offers to legislate the principle of civil strict liability.
Keywords:
professional custodian, professional activity, tort liability, contractual liability, pre-contractual liability, guilt, civil liability, civil-law liability, entrepreneurial activity, source of increased danger
Reference:
Sychev D..
Some issues of the application of the rules on the judicial fine
// Legal Studies.
2022. № 2.
P. 43-50.
DOI: 10.25136/2409-7136.2022.2.34840 URL: https://en.nbpublish.com/library_read_article.php?id=34840
Abstract:
The subject of the study is the novelties introduced by the legislator into the criminal procedure legislation in 2016 on the possibility of termination of criminal prosecution against persons who have committed crimes of small and medium gravity for the first time, with the simultaneous application of another criminal law measure against them, a judicial fine. The object of the study is the emerging law enforcement practice arising in connection with the application of the norms on the judicial fine. The article pays special attention to the practical applicability of the rules on the judicial fine in relation to persons who have committed crimes of small and medium gravity for the first time, with the so-called formal (non-investigative) composition, as well as those who have committed attempted crimes. Various aspects of practical compensation by such defendants (suspects, defendants) for the harm caused by the crime are considered. The main result of the conducted research is the author's conclusion that a real proportionate compensation for any harm caused by a crime, as required by law, should be an indispensable condition for the application of the rules on a judicial fine, regardless of what kind of crime is in question: with a formal composition or material. The novelty of the research lies in the fact that the author analyzed statistical data on the application of novels about a court fine for the last 3 years, the existing trends in the application of a criminal law measure, a court fine against persons accused (suspects, defendants) of committing crimes with the so-called formal composition, as well as attempted crimes.
Keywords:
judicial discretion, alternative sanctions, prosecutor, categories of crime, compensation for damages, public apologies, making amends for harm, exemption from liability, criminal law measures, court fine
Reference:
Yarovenko V.V., Pyatkova O.V., Cherednichenko A.V..
Application of digital technologies in fingerprinting (transition to creation, storage and research of materials in electronic format)
// Legal Studies.
2022. № 2.
P. 51-62.
DOI: 10.25136/2409-7136.2022.2.35038 URL: https://en.nbpublish.com/library_read_article.php?id=35038
Abstract:
The subject of the study is the fixation of traces and impressions of papillary patterns of fingers and palms of hands with digital devices and scanners. The research methodology is based on the analysis of modern scientific provisions and expert practice on digital technologies used in fingerprinting. Attention is paid to private scientific methods of cognition: description, comparison of signs of papillary patterns obtained electronically. The empirical component of the study confirms the need to obtain fingerprint information by the traditional method - by using printing ink to stain papillary patterns of fingers and palms of hands, which makes it suitable not only for fingerprinting, but also for poro- and ejeoscopic examination. В The main conclusions of the study conducted by the authors on the use of digital technologies in fingerprinting in electronic format is that when fixing and scanning a papillary pattern, proper image quality is not provided, small details (hook, peephole, fragment) are distorted, and private features are lost. When processing fingerprint information by scanners, errors are made, technical failures occur in the operation of the ADIS. Illustrative materials of poor quality cast doubt on the reliability and evidentiary power of fingerprint examination. Comparative study of handprints and fingerprints of the persons being checked with the help of ADIS "Papilon" can be used only as an auxiliary method.
Keywords:
fingerprinting, research, ADIS Papilon, Live Scanner, digital technologies, fingerprint cards, papillary patterns, footprints, expertise, identification
Reference:
Kalinkina V.V..
Problems of the mechanism for challenging of transactions of the debtor in bankruptcy case
// Legal Studies.
2021. № 11.
P. 30-45.
DOI: 10.25136/2409-7136.2021.11.36964 URL: https://en.nbpublish.com/library_read_article.php?id=36964
Abstract:
The subject of this research is a set of legal norms that regulate relations in the sphere of challenging of transactions of the debtor, as well as the law enforcement practice. The object of this research is the social relations that develop in the context of challenging of transactions of the debtor in bankruptcy case. The article discusses the problems faced by the arbitration and financial executives at the stage of claim preparation for challenging of transactions of the debtor, i.e. formation of evidence, as well as at the stage of execution of the corresponding court ruling. The purpose goal of this article lies in articulation of the problem, substantiation of the need for legislative regulation, and formulation of recommendation for the improvement of current legislation on the subject matter. The scientific novelty consists in addressed the issues that have not previously become the subject of separate research; as well as in the author’s conclusions and recommendations aimed at the improvement of the Federal Law No. 127-FZ of. October 26, 2002 “On Insolvency (Bankruptcy)” and other normative legal acts regulating this field. The acquired results can also be used in the Russian legal science for further elaboration on the issues related to the effectiveness of the mechanism for challenging of transactions of the debtor, and as well as improvement of the current legislation of the Russian Federation and law enforcement practice that regulate this field.
Keywords:
suspicious transaction, return of property, competitive weight, recognition of the transaction as invalid, challenging the debtor's transactions, isolated disputes, bankruptcy, debtor, lender, deal with preference
Reference:
Kocheva D.V..
On interaction between prosecutors and specialists in the exercise of powers to detect violations of laws outside the criminal law sphere
// Legal Studies.
2021. № 3.
P. 49-57.
DOI: 10.25136/2409-7136.2021.3.35405 URL: https://en.nbpublish.com/library_read_article.php?id=35405
Abstract:
The subject of this research is the public relations established in exercising of such a power by the prosecutor on detection of violations of laws outside the criminal law sphere as the right to demand from the policy makers and other officials “supervised” to the prosecutor's office the allocation of specialists. Findings of the experts in the material form are in demand among the law enforcement officers in different spheres of social life, including due to their evidentiary potential. The relevance of this research is defined by the fact that the scholars and practicing legal experts have accumulated a range of questions to the legal status of a specialist in the Russian legislation, which also pertains to the prosecutor's activity. The novelty consists in the author’s substantiation of the need to improve legal regulation of the corresponding legal relations based on comparison of the norms that regulate the mechanism of cooperation between specialists and prosecutors in supervision by the latter of compliance with laws, rights and freedoms of human and citizens, analysis of theoretical groundwork on the topic, and personal practical experience in the prosecutor's office. The article reveals the gaps in the existing legal regulation. This work may be valuable for the practitioners of the prosecutor's office, as well as bodies “supervised” to the prosecutor's office, scholars in the area of prosecutor's activity, legal experts, students, and postgraduates.
Keywords:
specialists, the supervisory powers of the prosecutor, the powers of the prosecutor, general supervision, bodies supervised by the prosecutor's office, the prosecutor, the prosecutor's office, bodies of the prosecutor's office, selection of specialists, identification of offenses by the prosecutor
Reference:
Yarovenko V.V., Ardashev R.G..
Dactylographic and dermatoglyphic characteristic of papillary fingerprint ridge patterns of serial killers who committed acquisitive crime
// Legal Studies.
2020. № 12.
P. 60-77.
DOI: 10.25136/2409-7136.2020.12.34697 URL: https://en.nbpublish.com/library_read_article.php?id=34697
Abstract:
In order to verify the conclusions made by other scholars that based on the traces of papillary ridges of fingers and hands using dermatoglyphic methods in forensics allow composing portrait of a suspect, the authors of the articled analyzed the dactylographic and dermatoglyphic characteristics contained in the accurate dactylographic profiles of the known serial killers who committed acquisitive crimes. Choice of this motive is explained by the fact that both males and females were driven by it. The subject of this research is the types of papillary fingerprint ridges, dactylographic formulas, pattern of ridges, presence or absence of symmetry of the same type of ridge on the same fingers of both hands, and delta index. Research methodology is based on the analysis of modern scientific provisions of dactyloscopy and dermatoglyphics. Considerable attention is given to the use of private scientific methods of cognition: description, comparison of characteristics of papillary fingerprint ridge patterns of serial killers. The application of these methods of cognition allowed concluding on the absence of undisputed evidence of papillary fingerprint ridge patterns of criminal nature, namely an increase in the number of arched ridges in calculating the frequency of ridges on separate fingers. This article is first to analyze not only the accumulated unique empirical material, but also presents the images for getting a fuller representation on the known serial criminals.
Keywords:
fingerprinting, dermatoglyphics, research, papillary patterns, mercenary motives, motives, murders, serial crimes, fingerprint maps, fingerprint formulas
Reference:
Ivanov V.Y..
On theoretical aspects of using the concept of digital footprint in forensics
// Legal Studies.
2020. № 7.
P. 75-80.
DOI: 10.25136/2409-7136.2020.7.33682 URL: https://en.nbpublish.com/library_read_article.php?id=33682
Abstract:
This article examines the theoretical problem of formulating a definition for new type of traced manifested in computer space. The subject of this research is concept of digital footprint. Special attention is paid to different approaches of forensic specialists towards interpretation of trace pattern formed as a result of a crime committed with the use of technical devices, including the Internet. Analysis is conducted on various opinions of forensic specialists dealing with this problem. The author provides and substantiates the original opinion on introduction of the term “digital footprint”. The conclusion is formulated on the need to accept digital footprint as most appropriate term for describing any type of trace manifested in computer space, including the Internet. The article also presents an original definition of such type of trace intelligible to general audience. The author indicates the trends and prospects in formation and further development of the new branch of forensic technology – “forensic examination of digital footprint". The proposed conclusions may be valuable in scientific and educational activity.
Keywords:
computer techologies, digital trace, electronic digital trace, information trace, virtual trace, electronic trace, traceology, binary code, cybercrime, Internet
Reference:
Shleinov A..
Strict civil legal liability in civil law of the Russian Federation on the example of responsibility for inflicted moral distress
// Legal Studies.
2020. № 3.
P. 48-64.
DOI: 10.25136/2409-7136.2020.3.32595 URL: https://en.nbpublish.com/library_read_article.php?id=32595
Abstract:
The subject of this research is the examination of such civil law institution of the Russian Federation as the “no-fault liability”. Since the question of strict liability in the current doctrine of civil law is quite critical, the author views this problem through the prism of one of the paramount means of protection of the subjective civil law, namely through the prism of responsibility for inflicted moral distress, tracing its evolution throughout the entire history and considering the legislation and case law. The novelty consists in indicating the possibility of bringing to strict civil legal liability for inflicting moral distress. The author demonstrates the presence of strict legal liability within the civil law of the Russian Federation on the example of current Russian legislation. The article provides the doctrinal and legislative examples that prove this point of view. The novelty also consists in determination of presence of the principle of “strict liability: in the Russian civil law, as well as modeling of situations that this principle could be implemented in. The research results are valuable for future development of the Russian legal doctrine and case law.
Keywords:
non-contractual obligations, liability without fault, legal liability, compensation for moral damage, protection of civil law, civil law, tort relationship, personal non-property rights, common responsibility, increased responsibility
Reference:
Korchagin A.G., Yakovenko A.A..
Criminogenic role of cryptocurrency
// Legal Studies.
2020. № 2.
P. 9-19.
DOI: 10.25136/2409-7136.2020.2.32096 URL: https://en.nbpublish.com/library_read_article.php?id=32096
Abstract:
This article explores the phenomenon of cryptocurrency and technology it is based upon. The authors describe the mechanism of its functionality along with the occurred problems of legal nature, which being interrelated make the phenomenon in question appealing within the criminal environment. Global digitalization sets new requirements, namely the combinations of legal and technical regulators meant to achieving adequate legal regulation in the digital era. The subject of this research is the Russian and foreign legal doctrine that reveals the essence of the indicated technology and mechanisms for protecting social relations in the context of utilization of this technology. The research methodology consists of the following methods: statistical, dogmatic, comparative-legal, synergetic, logical, functional, and systemic. The scientific novelty is substantiated by the need for convergence of the legal and information systems and demonstration of such convergence during the period of rapid digitalization in all social spheres. The authors draw a conclusion that the problem carries a comprehensive character, and the longer it takes to resolve the issues of legal regulation, the higher are the risks of using cryptocurrency.
Keywords:
crime, legal regulation, cryptocurrency, blockchain, integration, digitalization, darknet, drugs, theft, laundering
Reference:
Basmanov N., Ilin A.V..
Jurisdiction over claims made against public-legal institutions
// Legal Studies.
2020. № 2.
P. 1-8.
DOI: 10.25136/2409-7136.2020.2.32116 URL: https://en.nbpublish.com/library_read_article.php?id=32116
Abstract:
This article discusses the question of territorial jurisdiction over claims made against public-legal institutions (Russian Federation, constituent entities of the Russian Federation, municipal formations). The subject of this research is the current procedural norms regulating the questions of jurisdiction, and the established law enforcement practice. Attention is turned to the existence of gaps in legal regulation of the question of jurisdiction over claims made against public-legal institutions in the Civil Procedure Code of the Russian Federation and Arbitration Procedure Code of the Russian Federation. The authors analyze the established approaches in law enforcement practice towards solution of the aforementioned problem. Methodological framework includes the comparative-legal method and such formal-logical methods, as analysis, synthesis and induction. The relevance and practical importance are substantiated by the subject of research – the law enforcement practice formed by the Russian judicial authorities over the recent years. The conclusion is made on the need for elimination of the existing gap in the normative-legal regulation by amending the current procedural legislation.
Keywords:
Federal tax service, lacuna, civil procedure, Russian Federation, territorial jurisdiction, jurisdiction, public entities, proper defendant, indemnification, location
Reference:
Mironov R..
Capabilities of mathematical modeling of network interaction of the law enforcement authorities
// Legal Studies.
2020. № 1.
P. 36-46.
DOI: 10.25136/2409-7136.2020.1.30418 URL: https://en.nbpublish.com/library_read_article.php?id=30418
Abstract:
The subject of this research is the mechanism of integrated cooperation of law enforcement authorities, which due to application of modern technologies and capabilities of mathematical modeling and with consideration of the current political, organizational and normative-legal factors of counteracting criminality, would allow eliminating the organizational and management contradictions between the virtually established vertical-subordination model of interaction of the law enforcement authorities and the framework of public administration. The goal of this work consists in introduction of the basic foundations of mathematical modeling of interaction of law enforcement authorities at the intersection of two scientific directions – game theory and social network analysis, in the process of improving social technologies of public administration in the law enforcement sphere. The article is prepared on the basis of law enforcement practice leaning on the positions of social administrative theory, cybernetics, information analysis, and most recent achievements in the area of cross-disciplinary studies. The scientific novelty is defined by the hypothesis on the network social structure. Due to this fact, the developed mechanism of network interaction of law enforcements authorities [4, p. 31-41] is an element of digital economy responsible for solution of economic-mathematical problems, which in turn, substantiates the mechanism of improvement of social technologies of public administration in the law enforcement sphere.
Keywords:
social networks, network society, integration and cooperation, public administration, law enforcement, network connectivity, math modeling, digital economy, game theory, social technology
Reference:
Cherkasova O.V..
Reasonable Interest as the Criteria of Good Faith of a Minority Participant During Exercising the Right to Information Under the Corporative Law of Russia
// Legal Studies.
2019. № 12.
P. 35-43.
DOI: 10.25136/2409-7136.2019.12.31297 URL: https://en.nbpublish.com/library_read_article.php?id=31297
Abstract:
The object of the research is the term 'reasonable interest' and 'business purpose' during exercising the subjective right to information by a minority participant of corporation. The problem is that there is no single opinion both in doctrine and practice regarding the aforesaid terms as well as criteria of good faith of a minority participant during exercising of right to information about corporation activity. The subject of the research is different doctrinal interpretations of the terms 'interest', 'balance of interests', 'good faith of a minority participant in the process of gaining information' and judicial practice. The methodological basis of the research includes the following methods: analysis, synthesis, comparative legal, systemic structural, formal legal, theoretical prognostical methods and interpretation of law. The novelty of the research is caused by the fact that the author offers a list of criteria of good faith of a minority participant when a participant seeks to get access to information. This provision must be reflected at the level of corporation local acts which will reduce the level of corporate conflicts to the minimum.
Keywords:
balance of interests, criterion of good faith, share of corporation, abuse of rights, business purpose, reasonable interest, litigation, corporate conflict, corporate relations, participant of corporation
Reference:
Shukhareva A.V..
Invalid Entry in the Uniform State Register of Legal Entities: Consequences of Inaccurate Data in the Register and Measures of Protection of Bona Fide Entities
// Legal Studies.
2019. № 11.
P. 53-60.
DOI: 10.25136/2409-7136.2019.11.30182 URL: https://en.nbpublish.com/library_read_article.php?id=30182
Abstract:
The subject of the research is the analysis of implementation of the public accuracy principle to the Uniform State Register of Legal Entities and legal consequences of inaccurate entries. The author of the article analyzes how a state entry can be declared invalid and associated decisions can be made. The author also studies judicial experience in declaring entries made by the Tax Inspection of Russia in the Uniform State Register as invalid based on the analysis of 'nominee director' cases. These cases included registration of a legal entity as a physical entity using passport information of an individual who had received a certain payment and cases when criminals steal personal information. In the course of her research Shukhareva has applied the following research methods: analysis and synthesis, systems approach, structural functional and formal legal analysis. The results of the research demonstrate that to declare an entry as invalid in cases of 'nominee director', it is first necessary to initiate a criminal case according to Article 170.1 of the Criminal Code of the Russian Federation and make a procedural decision. The author concludes that criminal prosecution proves the fact that a legal entity which registration is disputed does not have a competence to manage or be recognized as a bona fide entity. Criminal measures combine with civil measures and even influence efficiency of one another. In cases when an individual becomes a nominal director not by his will but as a result of wrong actions of the third parties, it is possible to recognize invalid entry in the Uniform State Regiser of Legal Entities by appealing procedural decisions due to the absence of a violator.
Keywords:
presumption of reliability of information, imaginary deal, deal, invalid entry, inaccuracy, accuracy, nominee director, legal entity, registry, state registration
Reference:
Egorova O.A..
Appointment of a Proper Defendant in Cases Over Insurance Indemnity Under Third Party Liability Insurance Contract
// Legal Studies.
2019. № 11.
P. 61-68.
DOI: 10.25136/2409-7136.2019.11.31274 URL: https://en.nbpublish.com/library_read_article.php?id=31274
Abstract:
In this article Egorova analyzes questions that relate to the process of appointment of participants in a judicial process resulting from third party liability insurance contract made by vehicle owners who may act as an obligator on the side of the defendant. The importance of apointing a proper defendant is caused by the fact that these are unique cases that require a different court procedure, thus, the relationship between parties that existed prior the trial may significantly affect the final decision of the court. The research is based on theoretical and comparative analysis of the provisions of the Federal Law No. 40 of April 25, 2002 'Concerning Compulsory Civil Insurance of Owners of Means of Transport' that set forth several ways of compensation of harm as a result of road traffic incident, each way has its own proper defendant. The results of the theoretical analysis allow to describe a range of potential proper defendants nunder third party liability insurance contract. This proves the importance of the issue raised by the author of the article. The practical importance of the research is proved by the author through analyzing procedural competences of court and what defendants may be involved in the dispute.
Keywords:
judicial protection, insurer, policyholder, judicial procedure, judge, liability insurance, court, trial, defendant, insurance disputes
Reference:
Koglina V.A..
State-of-the Art Capabilities of Tracological Examination of Mechanical Damages on Clothes in Russia
// Legal Studies.
2019. № 9.
P. 52-65.
DOI: 10.25136/2409-7136.2019.9.29972 URL: https://en.nbpublish.com/library_read_article.php?id=29972
Abstract:
The article is devoted to methodological issues of carrying out a tracological examination of mechanical damages on clothes, in particular, cut or stab damages. The subject of the research is particular patterns of the process of marking formation of mechanical damages on clothes made out of modern fabrics. Bazarova focuses on the problem of discovering the relation between the type of fabric, weave pattern and morphological signs of damage left by weapons most frequently used in crime. The aim of the research is to analyze and develop methodological recommendations on how to investigate mechanical damage on clothes that are left by different types of marking formation. The methodological basis of the research includes scientific methods of judicial expertise, in particular, experimental and microscopical methods. The scientific novelty of the research is caused by the fact that the author has summarized and analyzed experience in tracological examinatin of damages on clothes, their role and importance for investigation of crimes. The experiments carried out by the author have revealed areas of concern and have allowed to make relevant recommendations and solutions. The author pays special attention to theoretical and practical recommendations on how investigate traces of damages on clothes. The practical importance of the research is that provisions, conclusions and recommendations presented by the author in this article may be of interest for students who study tracology and tracological examination as well as for practicing experts.
Keywords:
morphological feature, trace object, following object, stab damage, tracological examination, cut damage, thread weaving, mechanical damages, authentication, clothing material
Reference:
Khovavko S.M..
Detention of Sexual Crimes Considering Their Operational Search Characteristic
// Legal Studies.
2019. № 7.
P. 80-89.
DOI: 10.25136/2409-7136.2019.7.30300 URL: https://en.nbpublish.com/library_read_article.php?id=30300
Abstract:
The subject of the research is particular elements of operational search characteristics of sexual crimes. According to the author, awareness of these elements would increase efficiency of operational subdivisions of internal affairs agencies in discovering of sexual crimes as well as developing efficient tactical tools of sexual crime detention. The researcher analyzes specific structure and dynamics of sexual crimes, personality of a criminal, personalities of victims and their victim behavior, most typical time, place, method, weapon or other means of sexual crime commitment, typical traces of such crime, search signs of series crime and measures that help in investigation of sexual crime taking into account operational search characteristic thereof. The research methods used by the author included analysis, synthesis, modelling, statistical method, analysis of best practices and summary of practical activity of law enforcement agencies. The main contribution of the author to the topic is that the athor describes the main elements of operational search characteristic of sexual crimes and creates a list of measures that should be undertaken by law enforcement agencies to investigate sexual crimes considering applicable laws, theory and practice of operational search activity and modern criminal trends.
Keywords:
rape, sexual abuse, traces of crime, search signs of a crime, detection of crimes, operational search characteristic, sexual crimes, sexual exploitation of minors, child pornography, juvenile corruption
Reference:
Bronnikov A.M..
Security of Obligations Applicable During Organisation and Conduction of Property
// Legal Studies.
2019. № 1.
P. 34-43.
DOI: 10.25136/2409-7136.2019.1.27495 URL: https://en.nbpublish.com/library_read_article.php?id=27495
Abstract:
In his article Bronnikov analyzes the pledge that is mandatory for applicants seeking participation in the bidding as the means of security of the bidding. He also compares it to the security payment. Comparing the legal peculiarities of these means of obligations' security, the author of the article comes to the conclusion that unlike the pledge, the security payment better suits for the role of security of obligations during the bidding. Just so, the security payment does not require a written contract to be concluded, thus the fact of making the security payment by an applicant seeking participation in the bidding may be already acknowledged as the contract conclusion. Moreover, the return of the security payment in case the bidding process organizer declines the offer does not contradict to the eforcement function that it has (unlike in case of the pledge). The methodological basis of the research is a set of general research methods such as systems analysis, synthesis, clarification and abstraction, generalisation of research concepts and legal material, systems structured analysis, logical and analytical method. The researcher describes specific features of using the security payment in the process of the organisation and conduction of the bidding and proves that the security payment is a good alternative to the pledge. The use of the security payment creates additional guarantees for the bidding process organizer including the guarantee of fair practices of all bidding participants who are ready to submit the security payment instead of the pledge.
Keywords:
sale of property, bidding, entrepreneurship, obligatons, law theory, deposit, security deposit, security of obligations, pledge legal relationships, pledge
Reference:
Polezhaev O.A..
The Mechanism of the Emergence of the Property Developer's (Land Owner's) Right to the Construction Erected
// Legal Studies.
2018. № 12.
P. 49-54.
DOI: 10.25136/2409-7136.2018.12.20620 URL: https://en.nbpublish.com/library_read_article.php?id=20620
Abstract:
The article is devoted to the procedure and conditions of the emergence fo the property right to a newly erected construction. The author of the article makes a conclusion that the current legislation sets forth a number of requirements for a property developer, the kind of requirements that put the developer at disadvantage and deteriorate their right of property. As a result, the mechanism that explains the emergence of the right to a construction becomes quite unclear and court practice faces additional difficulties. As a conclusion, the author of the article emphasizes the need to improve the current legislation. In the course of this research the author has used both general research and special research methods, in particular, formal law and comparative law methods. The main conclusions of the article is the statements that the legal mechanism that explains the emergence of the right to a newly erected construction in Russian law has nothing in common with the classical principle 'superficies solo cedit' because it imposes additional requirements on a land developer. As a result, the ownership right is limited.
Keywords:
single object principle, land property, construction, emergence of property right, property right, mechanism, set of facts, grounds, conditions, collision
Reference:
Rykov D.A..
Ivalidity of Transactions MAde by an Insolvent Debtor: When the Right is Abused to Create Artificial Accounts Payable
// Legal Studies.
2018. № 11.
P. 36-43.
DOI: 10.25136/2409-7136.2018.11.27373 URL: https://en.nbpublish.com/library_read_article.php?id=27373
Abstract:
The object of this research is the social relations arising in case of transactions made by an insolvent debtor being recognized as invalid and creation of artificial accounts payable. The scope of the research covers signs of the right being abused when such cases are viewed by the court. Analyzing the Russian law that regulates insolvency (bankruptcy), the researcher underlines the fact that the examination of the issues regarding the abuse of the bankruptcy right lacks a systems approach which creates uncertainty of the process of examination of claims based on Article 10 of the Civil Code of the Russian Federation combined with Articles 168, 170 of the Civil Code of the Russian Federation. The methodological basis of the research implies a dialectical research method that involves objective, in-depth and concrete analysis of social and legal phenomena that arise in the process of deputing transactions made by an insolvent debtor. The scientific novelty of the research is caused by the fact that the author offers a systems approach to the analysis of the abuse of the right in the process of creation of artificial accounts payable. As a solution, the author suggests to create a list of circumstances that may help to discover the facts of the right being abused, and to legally enforce relevant explanations of the Supreme Court of the Russian Federation. According to the author, such explanations will allow a better qualification of actions performed by the participants of the bankruptcy procedure.
Keywords:
unscrupulous creditors, abuse of right, artificial accounts payable, invalidity, disputing transactions, insolvency, bankruptcy, transit transfer, lack of financial capacity, economic feasibility of the transaction
Reference:
Belyaeva E.R..
Tactical Features of Pre-Investigation Check on Falsification of Results in the Process of Investigation and Search Operations
// Legal Studies.
2018. № 10.
P. 51-56.
DOI: 10.25136/2409-7136.2018.10.22492 URL: https://en.nbpublish.com/library_read_article.php?id=22492
Abstract:
In her article Belyaeva examines tactical features of pre-investigation check on falsification of results of investigation and search operations and focuses on the inspection of the schene as an essential investigative action that allows to define a variety of circumstances of the committed crime already at the initial stage. The author describes tactical features of such investigative action and defines participants of the aforesaid process taking into account specific features of the crime committer pursuant to Part 4 of Article 303 of the Criminal Code of the Russian Federation. The research involves the variety of general and special research methods and bases on the fundamental concepts of legal theorists, criminalists, psychologists, philosophers, experts in the information theories, labour management and optimizing control. The novelty of the research is caused by the fact that for the first time in the academic literature the author examines tactical features of the process of scene inspection in case of falsification of results of the investigation and search operations. Based on the research results, the author offers particular organizational tactical recommendations that relate to discovering and investigating this kind of crime at the initial stage of the research.
Keywords:
investigator, employee of the operational device, office, message on a crime, inspection of the scene, falsification of results, investigation and search operations, criminalistics, participants of investigative action, latent crime
Reference:
Baranov V.V..
Legal and Organizational Grounds of Activities Undertaken by the Department of Internal Affairs to Resist Extremism on the Global Network
// Legal Studies.
2018. № 10.
P. 1-9.
DOI: 10.25136/2409-7136.2018.10.27186 URL: https://en.nbpublish.com/library_read_article.php?id=27186
Abstract:
The subject of the research is the legal and organizational grounds of activities undertaken by the Department of Internal Affairs to resist extremism on the global network. The object of the research is the fight against extremism spread on the global network. In his article Baranov analyzes some issues that may arise in the process of discovering and preventing extremism on the global network, and gives recommendations on how to improve the legal regulation of anti-extremism activities on the global computer network. To achieve the research targets, the author has applied general research methods such as empirical and theoretical analysis, and special qualitative and quantitative research methods. The research methodology is based on the analysis of legal acts that regulate activities undertaken by the Department of Internal Affairs to fight extremism. In particular, Baranov analyzes the legal acts of the Russian Federation that constitute the legal ground for activities performed by the Department of Internal Affairs to resist the spread of extremism on the global network. The scientific novelty of the research is caused by the fact that the author summarizes the researches of such scientists as N. Voronovich, A. Salakhutdinov, N. Lopashenko, E. Kubyakin, V. Stukalov and E. Zaporozhetsev, analyzes the federal law and measures undertaken by law-enforcement activities to fight against extremism at this stage, and gives recommendations regarding how to improve the organizational and legal mechanism of regulating the activity of the Department of Internal Affairs in the sphere of fighting against extremism on the global network.
Keywords:
counteraction, a responsibility, police, punishment, civil society, global, Internet, computer network, extremism, prevention
Reference:
Kolesnikov A.A..
Procedural Features of Pre-Trial Dispute Resolution of Claims to Declare a Title to Unauthorized Construction
// Legal Studies.
2018. № 4.
P. 50-54.
DOI: 10.25136/2409-7136.2018.4.25830 URL: https://en.nbpublish.com/library_read_article.php?id=25830
Abstract:
This article is devoted to the analysis and search for a legal solution of differences in evaluation of pre-trial activity (or inactivity) performed by an applicant for legalization of uauthorized construction when viewing claims to declare a title to unauthorized construction in civil and arbitration processes. The author of the research analyzes views and positions of the academic community as well as provisions of law and law-enforcement practice of arbitration courts and courts of general jurisdiction of the Russian Federation regarding pre-trial regulation of claims to declare a title to unauthorized construction. As a result of the author's in-depth analysis of judicial activity of general jurisdiction courts an arbitration courts, the author discovers that there is no unified approach to this issue in the law-enforcement practice and analyzes what possibly may cause such a contradiction. In order to avoid limitation of the constitutional right of an individual to judicial defence, the author offers to make amendments to Clause 3 of Article 222 of the Civil Code of the Russian Federation that legalizes a mandatory pre-trial procedure of dispute resolutions of claims to declare a title to unauthorized construction in the form of undertaken activities to legalize unauthorized construction.
Keywords:
proof, property, legalization, claimant, anauthorized construction, settelment, pretrial, judicial practice, recognize the right, court
Reference:
Yarovenko V.V..
Criminal Responsibility for Using Cold Weapons
// Legal Studies.
2018. № 3.
P. 58-75.
DOI: 10.25136/2409-7136.2018.3.25553 URL: https://en.nbpublish.com/library_read_article.php?id=25553
Abstract:
The article is devoted to criminal responsibility for using cold weapons, all kinds of knives and items that can be used as weapons. The author of the article demonstrates that the danger to the public depends not on the item that was used to commit a crime but actions committed by the guilty to the victim. The number of crimes that resulted in life and health injury were committed using general purpose items is more than that committed using cold weapons. In this research Yarovenko also pays attention to technical features of knives that are similar to cold weapons and considerably exceed admissible criteria. The methodology of the research is based on the analysis of applicable criminal laws, opinions of scientists and judicial investigative practicians regarding the definition of cold weapons and items that can be used as cold weapons. The novelty of the research is caused by the author's conclusion that since the criminal law regulating the use of cold weapons and items that can be used as cold weapons does not contain any distinctions between these, these crimes (Part 4 of Article 222 of the Criminal Code of the Russian Federation and Part 4 of Article 223 of the Criminal Code of the Russian Federation) can be decriminilized as if they were not causing any threat to the public.
Keywords:
examination, decriminalization, responsibility, crime, investigator, social danger, object, cold weapons, certification, model
Reference:
Vronskaya M.V..
Topical issues of private bankruptcy in Russian legislation
// Legal Studies.
2017. № 11.
P. 20-27.
DOI: 10.25136/2409-7136.2017.11.24812 URL: https://en.nbpublish.com/library_read_article.php?id=24812
Abstract:
The article studies legislation and law enforcement practice in the sphere of private bankruptcy in order to detect topical issues of legal regulation of these relations. Some parts of the work consider the problem of responsible performance of obligations by a finance manager and abuses related to concealment of income and property from bankruptcy estate. Forced sale is accompanied with significant difficulties in the case of marital assets. On the basis of judicial practice analysis, the author concludes about the absence of a unified approach to the application of legislative provisions about private bankruptcy and the clause 39 of the resolution of the Supreme Court Plenum of 13.10.2015 No 45. The author uses the complex approach. The research methodology includes judicial practice analysis, the formal-logical method and correlation between the actual and the legal. Over the past two years upon the private bankruptcy institution coming into effect, the practice of its application allows assessing and outlining the topical issues, which hamper implementation of law, and sometimes eradicating law abuses by the subjects of these legal relations. The author concludes that, despite the relatively effective application of corporate bankruptcy and bankruptcy of self-employed persons in Russia, it is too early to apply this mechanism in the same way to private bankruptcy. Some legal norms should be modernized, and (or) a particular interpretation by the Supreme Court Plenum, establishing legal positions of courts, should be adopted.
Keywords:
perfection of legislation, judicial practice, marital assets, forced sale, bankruptcy estate, financial manager, abuse of law, actual problems, private bankruptcy, insolvency
Reference:
Yarovenko V.V..
Expert initiative in the modern expert practice
// Legal Studies.
2017. № 6.
P. 84-94.
DOI: 10.25136/2409-7136.2017.6.22855 URL: https://en.nbpublish.com/library_read_article.php?id=22855
Abstract:
The author gives attention to the controversial points of expert initiative on the issues, not mentioned in a decision about the appointment of judicial expertise, but related to the subject of expert investigation. The author studies the current legislation and the scholars’ positions on the necessity to formalize this initiative, which, in the author’s opinion, doesn’t correspond with the adversarial principle. Besides, the author studies various types of expert’s opinions on particular criminal cases related to expert initiative. The author uses two main approaches to substantiate his decisions: the comparison of expert initiative novels, proposed by different authors, with the current legislation, and the analysis of expert practice. The author concludes that the problems, raised by the expert, and their investigations shouldn’t be included in the expert’s opinion, since they can be considered as an inadmissible evidence and can be excluded from evidentiary information; it is unreasonable to formalize the provision, which can infringe the interests of the parties; expert initiative can be applied to the expert’s questions if they don’t change the meaning and the volume of the investigation.
Keywords:
initiative, procedural legislation, findings, scope of study, questions, expert, investigator, evidence, expert opinion, adversary character
Reference:
Bronnikov A.M..
Pledge of rights of corporate members and the procedure of their implementation on public markets
// Legal Studies.
2017. № 5.
P. 100-106.
DOI: 10.25136/2409-7136.2017.5.19969 URL: https://en.nbpublish.com/library_read_article.php?id=19969
Abstract:
The research subject is the set of legal provisions aimed at the regulation of relations in the field of pledge of rights of corporate members, the practice of their application by antimonopoly service and courts, and the set of theoretical provisions about pledge. The author analyzes the problem of the legal nature of pledge over shares of an LLC’s registered capital, outlines topical legal problems, and offers the ways to solve them. The author also raises the question of realization of this subject of pledge on public markets. The research methodology is based on the set of general scientific and specific methods of jurisprudence such as analysis, synthesis, specification and abstraction, the comparative-legal, formal-legal, technical-legal, sociological methods, and the method of legal modeling. The scientific novelty of this study consists in the fact that though there are particular works on this topic, the issue of pledge of rights of corporate members hasn’t been studied sufficiently enough yet. Based on the analysis of sources, normative acts, judicial practice, and the practice of public marketing, the author offers concrete measures for the solution of particular legal problems, connected with pledge over shares of companies and their further realization on public markets for the purpose of meeting the liabilities to creditors.
Keywords:
antimonopoly practice, judicial practice, market, stock, share, public market, pledge of shares, pledge relationship, Pledge, law enforcement
Reference:
Evteev K.I..
Topical aspects of ascertainment of guilt of persons, responsible for controlling debtors
// Legal Studies.
2017. № 5.
P. 20-30.
DOI: 10.7256/2409-7136.2017.5.22673 URL: https://en.nbpublish.com/library_read_article.php?id=22673
Abstract:
The research subject is the provisions of the Federal Law of 26.10.2002 No 127 “On bankruptcy” with regard to legislative consolidation of reasons for the imposition of subsidiary responsibility on persons, controlling debtors. The research object is social relations, arising in the process of imposition of subsidiary responsibility on persons, controlling a debtor, with regard to ascertainment of their guilt for his/her inability to fulfill commitments. The purpose of the research is to reveal the problems of ascertainment of guilt of persons, controlling debtors, at bankruptcy. The author considers such topical aspects of this problem as the criteria of negligence and irrationality, the methods of assessment of rationality and fidelity of persons, controlling a debtor, and the moment of appearance of an obligation to take into account creditors’ interests. Special attention is given to the prospects of transformation of Russian legislation with account for the existing foreign experience in this sphere of social relations. The author applies general scientific and specific methods of cognition of phenomena and processes, including dialectical method, formal-logical, and comparative-legal methods. The scientific novelty consists in the comparative-legal analysis of the problem aspects of ascertainment of guilt of persons, controlling a debtor, at bankruptcy. The author concludes about the necessity to raise the question about practicability of legislative specification of the criteria of irrationality and negligence of the behavior of persons, controlling a debtor, for the purpose of reduction of the sphere of application of value judgements. The results of the study can be applied in law-making and judicial practice.
Keywords:
Arbitration process, Corporation, Lifting the corporate veil, subsidiary responsibility , Controlling persons, responsibility to creditors, Bankruptcy, Cross-border bankruptcy, Creditors, Indebtedness
Reference:
Nikitin V..
Challenging of payments as transactions during bankruptcy proceeding (with account for the experience of execution of building contracts)
// Legal Studies.
2017. № 4.
P. 60-72.
DOI: 10.7256/2409-7136.2017.4.22467 URL: https://en.nbpublish.com/library_read_article.php?id=22467
Abstract:
The research subject is the legal grounds for challenging of transactions of a debtor within the bankruptcy proceeding, implemented during the so-called “suspicion period”, preceding the recognition of a debtor as a bankrupt. The most important scientific achievement of recent years in this sphere is the extended understanding of a transaction, which interprets a transaction also as a discharge of an obligation (active discussion of this problem was initiated by S.V. Sarbash). The research subject includes the problems of law-enforcement, connected with annulment of complex agreements as a consequence of selective annulment of particular transactions, which are the parts of such agreements, with no account for the balance, provided by the agreements, based on reciprocal performance of obligations. The author applies historical method and the method of system analysis of laws, regulating bankruptcy procedures in their interconnection with the provisions of the Civil Code of the Russian Federation on transactions. Besides, the author applies historical-legal and formal-legal methods. According to S.V. Sarbash’s theory, implemented in civil law, challenged transactions include acts of cession of goods and payments. Consequently, bankruptcy procedures effectively contest parts of agreement with no account for their interrelation, and all the outgoing payments of the debtor, made during the pre-bankruptcy period, are threatened with restitution. The author reveals a significant contradiction of law-enforcement practice: the provisions of the article 180 of the Civil Code of the Russian Federation, ordering to preserve the part of a transaction, are used rarely; this article is not used for the division of an invalid transaction into the elements. In turn, the provisions of the law on bankruptcy about the possibility to separate particular transactions (parts) from the agreement (transaction) and the subsequent annulment within bankruptcy procedure, are widely used. This situation contains the contradiction in the sphere of regulation of transactions within civil law. The author draws attention to the fact that a building contract is one of the spheres of contractual law, in which annulment of agreements can lead to unpredictable consequences.
Keywords:
fairness, restituiton, cession of goods, payment, challenging of the transaction , invalid transaction, bankruptcy , building contracts, bankruptcy proceedings, discharge of obligations
Reference:
Yanchurkin O.V., Mamatov V.G..
On investigation of crimes in housing and utility sector
// Legal Studies.
2017. № 2.
P. 51-59.
DOI: 10.7256/2409-7136.2017.2.16637 URL: https://en.nbpublish.com/library_read_article.php?id=16637
Abstract:
The research subject is the prosecutorial and investigative practice of investigation of crimes in housing and utilities sector, the scientific works in this field and the statistical data. The research object is social relations emerging in the process of investigating crimes in housing and utilities sector. The authors analyze the practice of reported offences consideration and criminal cases investigation in this sphere. Special attention is given to the detection of the breaches of law, committed by law enforcement agencies during pre-trial investigation of criminal cases in this sphere. The paper analyzes the works of Russian scholars on this issue and the official statistics of the General Prosecutor’s Office of the Russian Federation, devoted to this category of criminal cases. The research methodology is based on formal-logical, comparative-legal, logical, structural-functional and normative methods helping consider the issue comprehensively. The scientific novelty of the study consists in the complex consideration of the detected weaknesses of law enforcement agencies’ activities within the investigation of crimes of this category, and in the proposals about these weaknesses elimination. Pre-trial reviews are not sufficient. Requests for the necessary documents are not sent in proper time. Refusals to initiate criminal proceedings are issued ahead of time. Pre-trial investigation of criminal cases is not effective. Reasonable terms of criminal proceedings are breached. Measures to detect the guilty persons and the circumstances that should be proved according to the article 73 of the Criminal Code, are not assumed in due time. Forensic enquiries are not appointed in due time. Usually it happens because of the lack of specialists or equipment, or high price for expertise (it can be up to 300 000 rubles in nongovernmental institutions). The level of interaction between operational and investigative departments and control and supervision agencies in the sphere of prevention, detection, and elimination of breaches, is low. The property of the accused person, which can compensate the property damage, is not detected and sequestered in due time. It seems that the elimination and prevention of such weaknesses can raise the effectiveness of the work of bodies responsible for pre-trial investigation of criminal cases in housing and utility sector.
Keywords:
compensation of damage, problems of interdepartmental interaction, typical weaknesses of investigation, breaches in housing and utility sector, prosecutorial and investigative practice, Corruption in housing and utility sector, housing and utility sector, investigation of crimes, suspension and termination of proceedings, weaknesses of a pre-investigation review
Reference:
Khvostitskii M.V..
Legal regulation of invalid transactions whose goals contradict the fundamentals of morality or law and order: legal mistakes and the ways to solve them
// Legal Studies.
2017. № 2.
P. 60-67.
DOI: 10.7256/2409-7136.2017.2.20276 URL: https://en.nbpublish.com/library_read_article.php?id=20276
Abstract:
The research object is social relations in the sphere of invalid transactions. Special attention is given to the problems of application of the consequences of the declaration of invalidity of a transaction whose goals contradict the fundamentals of law and order and morality. The paper studies different approaches to the idea of the concept of public order in different countries, including those in the context of correlation between the terms “law and order” and “public order”. The author considers such aspects of the topic as the reasons for the application of the article 169 of the Civil Code of the Russian Federation. The study is based on general scientific and special research methods. General scientific methods include the following groups: 1) methods of empirical research; 2) methods used on both empirical and theoretical levels; 3) methods of theoretical research. Special methods include: 1) methods of collection, classification and verification of factual materials: formal-legal method or statutory acts interpretation; 2) methods of factual material processing: normative and dogmatic analysis, comparative jurisprudence and historical-legal method. The author concludes about the necessity to formalize the list of transactions whose goals contradict the fundamentals of law and order or morality; the author offers a new formulation of the first paragraph of the article 169 of the Civil Code of the Russian Federation.
Keywords:
legal regulation, morality, purpose, good faith purchaiser, law and order, public order, morality fundamentals, law and order fundamentals, void transaction, invalid transaction
Reference:
Karpova E.V..
Burning problems of a work and labour contract and a paid services agreement in car service
// Legal Studies.
2016. № 7.
P. 37-45.
DOI: 10.7256/2409-7136.2016.7.18250 URL: https://en.nbpublish.com/library_read_article.php?id=18250
Abstract:
The research subject contains the burning problems of legal regulation of legal relationship resulting from a work and labour contract or a paid services agreement in car service. Special attention is paid to the problem of interpretation of conditions of a work and labour contract on motor transport maintenance and the problems of defining the form and the content of work and labour contracts and paid services agreements in car service. The author applies the complex approach. The problems are considered in the correlation of the material and the procedural aspects. The research methodology includes the analysis of judicial practice, the comparative analysis, the formal-logical method, the hermeneutical method, the principle of unity of concrete and abstract, the correlation of actual and legal, material and procedural, form and content. The scientific novelty of the study consists in the identification and classification of two groups of problems of legal regulation of legal relationship resulting from the work and labour contract and the paid services agreement in car service. The classification criteria are the ontological grounds: the content and the form (the contensive and the formal aspect of legal relationship). The author studies legal problems of the contensive aspect of legal relationship: the problem of interpretation of the conditions of the work and labour contract or the paid services agreement in car service (in favour of the work and labour contract or the paid services agreement), the problem of the subject of the agreement defining (the problem of agreeing upon the types, quantity and cost of motor vehicle parts). The author studies the problems of the formal aspect of legal relationship: the problem of a complex character of the form of the agreement (a single document containing all the necessary conditions of the signed order), the problem of legal arrangement of the fact of work or services delivery (work acceptance certificate), the problem of legitimacy of the representative’s authorities (based on the warrant or resulting from the circumstances).
Keywords:
paid services delivery, work and labour contract, form of the contract, contract interpretation, car service , work delivery, order, warrant, repairs, maintenance
Reference:
Nikitin V..
Foreign organizations’ admission to construction activities in the Russian Federation: legal regulation issues
// Legal Studies.
2016. № 7.
P. 46-53.
DOI: 10.7256/2409-7136.2016.7.18558 URL: https://en.nbpublish.com/library_read_article.php?id=18558
Abstract:
The article considers the peculiarities of legal status of a foreign construction organization. The author analyzes the term “a foreign construction organization”. The research subject includes the aspects of admission of foreign organizations to construction activities in the Russian Federation. The author considers the place and the role of a self-regulated organization in granting admission for foreign organizations to construction activities, exploring and design, and the conditions of foreign construction organizations’ entering the Russian self-regulated organizations. The paper studies the problem of the status of economically autonomous subdivisions of foreign construction organizations in the context of changes in the labour law. The analysis of statutory instruments and special literature helps the author to formulate the key provisions of understanding the legal status of a foreign construction organization in the Russian Federation and to identify the problems in this sphere. The author notes that the foreign belonging of the subject, together with the specificity of construction activities, influences legal regulation of admission of a foreign organization to construction and the related design and engineer works. The author notes that the procedure of admission of foreign construction companies to self-regulated organizations should be specified and should take into account the experience of the organization and the possibility of its confirmation. The study reveals the insufficiency of determining the legal status of economically autonomous subdivisions of foreign construction organizations based on the civil legislation. The author offers the definition of a foreign construction organization and substantiates the conclusion about a coordinated application of the provisions of national legislation and international agreements in the sphere in question.
Keywords:
personal law, business activities, admission, building area, Russian law, international agreements, design, engineering, construction, foreign organization
Reference:
Alekseenko A.P..
Problems of Defining a Legal Nature of the Relations Emerging Between a Corporation and the Members of its Management Bodies
// Legal Studies.
2016. № 6.
P. 45-51.
DOI: 10.7256/2409-7136.2016.6.19300 URL: https://en.nbpublish.com/library_read_article.php?id=19300
Abstract:
The research subject is the set of norms of labor and company law, and the acts of commercial courts of the Russian Federation related to legal regulation of the order of formation and the activity of management bodies of a corporation. The author considers the legal nature of relations between a corporation and the members of its management bodies, analyzes the grounds of such relations, including the general meeting of shareholders and the labor contract. Special attention is paid to the existing duality of the position of the executive body which is on the one hand a subject of company law, and on the other – a subject of labor law. The author applies comparative-legal and formal-legal research methods, analysis and synthesis. Based on them the author studies the provisions of Russian legislation and judicial acts. The author reveals the contradictory character of the legal nature of relations between a corporation and its management bodies. According to the current legislation, the relations between the directorate members and a corporation can be regulated by labor legislation while not being labor relations. Besides, the relations between an executive person and a company are based on a labor contract, and this situation is contradictory.
Keywords:
general meeting of shareholders, executive body, labor contract, institutional relations, decisions of meetings , Head of the Company, board of supervisors, labor legislation, directorate, corporation
Reference:
Karpova E.V..
Topical problems of legal regulation of civil-law relations in the field of car service
// Legal Studies.
2016. № 5.
P. 42-49.
DOI: 10.7256/2409-7136.2016.5.18214 URL: https://en.nbpublish.com/library_read_article.php?id=18214
Abstract:
The research subject is the study of legislation and judicial practice aimed at detecting topical problems of legal regulations of civil-law relations in the field of car service. Special attention is paid to the problems of rights protection in contractual legal relationship of services, maintenance works, and repair of vehicles and the problem of protection of the sole right to a trade mark in the sphere of car service. The author applies the complex approach. The problems are considered within the correlation of material and procedural aspects. The author pays attention to the body of evidence necessary for legal collisions settlement. The author applies the method of judicial practice analysis, comparative analysis, the formal logical method, the hermeneutical method, the principle of unanimity of concrete and abstract, the correlation of factual and legal, material and procedural. The novelty of the study consists in the detection and classification of two groups of problems of civil-law relations in the field of car service. The author studies legal problems of execution of rights of car services’ clients (the problem of failure to perform obligations, to ensure safety of vehicles in car services, the problem of moral damage compensation and penalties claiming). The author studies the legal aspects of implementation of rights of organizations and individual entrepreneurs providing services in the field of car service (the problem of protection of the sole right to a trade mark, failure to perform payment obligations, reimbursement of spares in case of a unilateral invalidation of an agreement by the customer).
Keywords:
repair, maintenance, vehicles, trade mark, penalty, moral damage, storage, services, works, car service
Reference:
Teryukov E.O..
Problems of application of a suspensory veto as administrative proceedings injunction in the sphere of construction for the offences punishable by administrative suspension of activities
// Legal Studies.
2016. № 4.
P. 30-36.
DOI: 10.7256/2409-7136.2016.4.18737 URL: https://en.nbpublish.com/library_read_article.php?id=18737
Abstract:
The research subject is the set of legal provisions regulating the order of application of a suspensory veto as administrative proceedings injunction in the sphere of construction for the offences punishable by administrative suspension of activities. Special attention is paid to the offences in the sphere of construction punishable by administrative suspension of activities. Despite the clarity of the dispositions and sanctions of the articles of the Code of Administrative Offences, devoted to administrative liability in the sphere of construction, administrative suspension can serve as an administrative warning and at the same time as an administrative restraint. The author substantiates the idea that the use of such an injunction as a suspensory veto helps to secure the sphere of construction and to reduce the number of offences in this sphere. Administrative suspension of activities is the most widespread measure of administrative punishment for offences in the sphere of construction. It can serve both as a measure of administrative warning and a measure of administrative restraint. But in administrative proceedings in the sphere of construction in some cases, prescribed by the legislation, there is an need for injunctions, and one of the most important and significant of them is administrative suspension of activities. The author of this study describes the essential problems of this measure application and pays particular attention to the possible ways of improvement of the mechanism of its application in the cases of violations in the sphere of construction.
Keywords:
administrative offence, construction, administrative suspension of activities, suspensory veto, injunctions, proceedings, technical regulations, protective legal relations, administrative warning, administrative restraint
Reference:
Kabanov P.A..
The Role of the Chief Federal Inspector in the Region of the Russian Federation of the Presidential Plenipotentiary Envoy Apparat in the Work of Anti-Corruption Commission in the Region of the Russian Federation
// Legal Studies.
2016. № 3.
P. 35-48.
DOI: 10.7256/2409-7136.2016.3.18440 URL: https://en.nbpublish.com/library_read_article.php?id=18440
Abstract:
The research subject is the legal status and the activities of the Chief Federal Inspector in the Region of the Russian Federation of the Presidential Plenipotentiary Envoy Apparat in the work of Anti-Corruption Commission of the Russian Federation. The research object is the set of statutory instruments regulating the Chief Inspector’s activities. The research methodology is based on the dialectical materialism and the related general scientific methods of cognition: analysis, synthesis, comparison, and other methods. The scientific novelty of the study is explained by the fact that it is the first study in Russian legal science describing the main responsibilities of the Chief Federal Inspector in the Region of the Russian Federation of the Presidential Plenipotentiary Envoy Apparat in the work of Anti-Corruption Commission of the Russian Federation.
Keywords:
civil society institution, legal regulation, Federal inspector, control, anti-corruption policy, fight against corruption, Corruption, Commission, coordination, anti-corruption activities
Reference:
Kuznetsova E.I..
Overturning of execution of court decision: matters of argument in civil and arbitration proceedings
// Legal Studies.
2015. № 9.
P. 71-81.
DOI: 10.7256/2409-7136.2015.9.16029 URL: https://en.nbpublish.com/library_read_article.php?id=16029
Abstract:
The paper considers law enforcement of the institution of overturning of execution of court decision in civil and arbitration proceedings. The author pays special attention to the conditions of application of this institution, focuses on the deficiencies of legislation regulating this institution, and gives the examples of judicial practice. The article also considers the admissibility of use of this institution in cases of non-pecuniary claims, adduces the judicial practice examples. Special attention is paid to the comparative-legal analysis of regulation of this institution in the provisions of the Civil Code and the Administrative Code of the Russian Federation. The author concludes that the existing Russian legislation doesn’t solve the problem of admissibility of use of the institution of overturning of execution of court decision on non-pecuniary claims. At the same time, the legislator has qualified the categories of cases which are not considered within this institution. The author advices to legitimate the term “overturning of execution of judicial act” in the Civil Code, as the term “judicial act” is wider than the term “court decision”.
Keywords:
overturning of execution, judicial act, court decision, civil proceedings, arbitration proceedings, restitution, pecuniary claims, executive process, reversal of judgement, restoration of rights
Reference:
Kuznetsova E.I..
The problem of use of the superlative degree in advertising: the review of judicial practice of Russian courts
// Legal Studies.
2015. № 7.
P. 93-105.
DOI: 10.7256/2409-7136.2015.7.15259 URL: https://en.nbpublish.com/library_read_article.php?id=15259
Abstract:
The article considers the issues of legislation observance in the sphere of advertisement compliance with the requirement of credibility of information about the advantages of the advertised goods over other goods. The analysis of judicial practice shows that this issue is rather controversial and is solved by courts in different ways. Thus the article also deals with the issue of the criteria of advertisement if the advertised product is endowed with such categories as “the best”, “the first”, “number one”, etc. The consideration of the mentioned problems is especially important for law-enforcement practice of commercial subjects promoting their goods and services. The author outlines the criteria which are positively and negatively taken in judicial practice of Russian courts considering the cases of use of the superlative degree in advertisement, their analysis and consideration of specific examples from the recent judicial practice.
Keywords:
advertisement, promotion of goods, unreliable advertisement, comparison, advantage of the advertised product, the best product, advertised production, legislation on advertising, analogous product, proof
Reference:
Nagornaya I..
Permissibility of on-the-job medical treatment in the light of the principle of patient's rights priority
// Legal Studies.
2015. № 6.
P. 53-68.
DOI: 10.7256/2409-7136.2015.6.14498 URL: https://en.nbpublish.com/library_read_article.php?id=14498
Abstract:
Legislation and other legal acts regulating the types, conditions and forms of medical care are analyzed. The author considers legal responsibility of medical organizations and health professionals according to the Criminal Code and Code of Administrative Offences of the Russian Federation in connection with the provision of on-the-job medical treatment, including the application of articles 171, 235, 238 of the Criminal Code and article 14.1 of the Code of Administrative Offences of the Russian Federation. The legal, technical and system analyses of the regulations are carried out. The priority of patient's rights t is described as one of the basic principles of health care. On-the-job medical treatment complies with the principle of patient's rights priority. A key prerequisite is the ability to organize medical care properly. The provision of medical care on-the-job equals to medical treatment at home.
Keywords:
calling a doctor, health protection, administrative offence, licence requirements, criminal responsibility, office, medical service, medical aid, medical activity licensing, paid medical service
Reference:
Bogdan V.V..
Some peculiarities of enforcement of the consumer right for judicial protection
// Legal Studies.
2015. № 2.
P. 40-58.
DOI: 10.7256/2409-7136.2015.2.14074 URL: https://en.nbpublish.com/library_read_article.php?id=14074
Abstract:
The article considers one of the key aspects of consumer rights protection in Russia - the enforcement of the right for judicial protection. The right for judicial protection of consumer rights is one of the most important legal guarantees of citizens’ rights on the market of goods and services. The enforcement of consumer right for judicial protection is determined by its special legal status, which provides a number of additional legal benefits, including those of a procedural nature. The author elaborates separate procedural peculiarities of consideration of civil cases on the protection of consumer rights, provided not only by the Russian Federation Law "Concerning the Protection of Consumer Rights, but also by the decision of the Plenum of Russian Supreme Court "On courts, civil cases involving disputes about consumer protection" dated 28 June 2012, No. 17. In the process of research the author uses the analytical, formal legal methods, the method of abstraction, which allowed formulating conclusions. The scientific novelty of the research consists in the fact that author, on the basis of norms of the current legislation on the protection of consumer rights identifies the procedural peculiarities of enforcement of the consumer right for judicial protection, the content of which is also affected by judicial practice. The author comes to the conclusion that, despite a rather clear mechanism of judicial protection of consumer rights, in the process of enforcement there may appear problems of efficiency of some procedural advantages that, in its turn, necessitates the upgrading of dictinct legal norms.
Keywords:
consumer, court, civil process, alternative jurisdiction, judicial protection, state duty, statement of claim, legal benefits, burden of proof, protection of rights
Reference:
Badikov K.N..
Psychological profile building on the base of papillary lines typology
// Legal Studies.
2015. № 2.
P. 59-71.
DOI: 10.7256/2409-7136.2015.2.14311 URL: https://en.nbpublish.com/library_read_article.php?id=14311
Abstract:
The subject of the research contains integrated and integrative correlation of “picture type-CNS- behavior” system. the typology of lines is considered as “general – psychological type” model, as for particular one it is used “psychomodel of individuality” model, which is formed up with regard to integrative cooperation of right and left cerebral hemisphere.The object of the research is the distal phalanx print of the first fingers. Types of papillary lines and psychological characteristics of person who has an arc print on the left finger and twins loops on the right hand are analyzed. Type of papillary lines is a traditional object of identification in expert report. We suggested analyzing typology of first finger print in combination with print typology of the main right hand for forming a scheme of psychological type. This model of analysis allows establishing the integrated psycho-dermatoglyphic relations, which are formed by the dominant and sub-dominant cerebral hemispheres.Methodological base of research contains the provisions of the dialectic approach, the system approach to psychological type building. In order to solve the psycho-diagnostics problems of the fingerprints owner the author uses the general scientific methods of research approach (description, testing) and the special ones (statistic analysis, integrated and integrative analysis).Typology of papillary lines is traditionally regarded as the main diagnostic object in genetics, medicine and forensics. We consider typology of first fingers print in relation to interrelations of functions of right and left hemispheres on one’s behavior. The functional status of hemisphere and inter-hemisphere reciprocity is related to the choise of a behavior strategy.
Keywords:
papillary lines, forensic science, fingerprint, minutia, psycho-papillary relations, Genetics, psycho-diagnostics, brain, morphology, expertise
Reference:
Boldyrev S.I..
The main ways of copyright infringement in the Internet
// Legal Studies.
2014. № 12.
P. 35-43.
DOI: 10.7256/2409-7136.2014.12.1370 URL: https://en.nbpublish.com/library_read_article.php?id=13708
Abstract:
The article considers the main ways of copyright infringement in the Internet. Nowadays there are various and numerous ways of copyright infringement in cyberspace. As the study shows, copyright infringement is an international problem, and each country searches for the legal ways of struggle against it. The author uses the methods of analysis, synthesis, abstracting and concretization, and reveals the peculiarities of copyright infringement in the Internet. The scientific originality is based on the fact that the author is one of the first scholars who consider the peculiarities of copyright infringement in the Internet from the point of view of the necessity to maintain the balance between the private interests of consumers and the use of legal measures against the infringer. Eventually the author concludes that the key concept of the contemporary system of intellectual property protection in the Internet should be the presumption of the free use of copyright objects, unless the rightholder declares the other. The main role in struggle against copyright infringement in the Internet should be assigned to the legal measures.
Keywords:
copyright, the Internet, copyright infringement, cyberspace, infringing goods, protection, ways of infringement, Internet piracy, Internet provider, pirated copy
Reference:
Badikov K.N., Abakarova N.V..
The phantoms of psycho-dermatoglyphics segmental diagnosis
// Legal Studies.
2014. № 12.
P. 44-58.
DOI: 10.7256/2409-7136.2014.12.1388 URL: https://en.nbpublish.com/library_read_article.php?id=13882
Abstract:
The article is devoted to the research of the cumulative and integrative correlations of the “cell-CNS-fingerprint-psychics-pathology-behavior” system. The proposed three-dimensional stereotaxic model of brain segments and structures has the interdisciplinary nature. The author analyzes the psycho-dermatoglyphic and neuronal connections and their projections on the distal phalanx prints. The object of the research is the fingerprint morphology. The morphology of the particular dermatoglyphic features is connected with many human characteristics and serves as an object of psychogenetic, forensic medical and criminalistic examination. The results of the contemporary psychogenetic research outline not only the meaning of the identification features of fingerprints, but also their diagnostic, psychological and nosological correlations. The use of the stereotaxic projective method expands the psychodiagnostic value of a traditional forensic expert’s report. It provides criminalists with the opportunity not only to identify, but also to create a psychological profile. To solve the problem of the fingerprints owner psychodiagnosis the author of the article uses the general methods of study (description, comparison) and the special ones (statistical analysis, cumulative and integrative analysis). The main conclusions are the conceptual provisions of the fingerprint mapping methods and ways, which are being realized in the stereotaxic projection of brain segments. As a new area of forensic diagnostics, psycho-dermatoglyphics contains the cumulative and integrative correlations of the fingerprint and the stereotaxic brain model, and its main goal is the topological and nosological diagnostics. The practical task of this innovative method application is the creation of a psychological profile. The psycho-dermatoglyphic method is based on the correlation of the topological model of brain structures and the morphology of a fingerprint (thumb right, thumb left) within the context of integrative behavior and individual morphology of particular features, reflecting neuropsychological and psycho-dermatoglyphical connections.
Keywords:
fingerprint, psychodiagnosis, criminalistics, genetics, dermatoglyphic marker, pathology, expertology, brain, psychics, identification
Reference:
Nagornaya I..
Informed Voluntary Consent to Medical Intervention and Responsibility of Medical Personnel
// Legal Studies.
2014. № 10.
P. 74-88.
DOI: 10.7256/2305-9699.2014.10.1317 URL: https://en.nbpublish.com/library_read_article.php?id=13174
Abstract:
The author analyses the legal regulation of obtaining informed voluntary consent to medical intervention from a person or person’s legal representative. Requirements for the form and substance of such consent are considered. It is pointed out that compliance with the former presumes due execution of the required documents and with the latter – informing the patient (the patient’s legal representative) about the purposes, methods of providing medical care, associated risks, possible options for medical intervention, its consequences and about the anticipated results of such medical care. Examples are given from court precedence related to holding medical personnel administratively and criminally liable in connection with violation of the statutory rules on obtaining the patent’s consent to medial intervention. The article analyses the matters relating to the responsibility of medical personnel for providing medical intervention without giving the patient the full details. The systematic analysis of the Russian law, court precedence and the Canadian doctrine and the position of the judicial authorities of Canada was carried out in order to identify any experience that may be applied to the Russian environment. The conclusion is made that it is reasonable to prepare the wording for specific essential elements of an offence which entail responsibility of medical personnel for non-observance of the patient’s right to receive the fullest possible information in an easily understandable form if the consequences of such non-observance are grievous bodily harm or other grievous consequences caused by the nature of the medical intervention and not by the guilty acts of the medical personnel. The mediсal personnel should select the communication manner which corresponds to the patient’s objective condition, age and ability to understand information while at the same time avoiding any unnecessary “intimidation” or underestimating the risks involved.
Keywords:
informed voluntary consent , patient, medical personnel, medical intervention, complete information, understandable form, criminal responsibility, administrative responsibility, premeditated crime, Canada
Reference:
Kabanov P.A..
Compromises in the implementation of the state policy of the Russian Federation in the sphere of fighting corruption as means of resolving legal contradictions.
// Legal Studies.
2014. № 7.
P. 66-78.
DOI: 10.7256/2305-9699.2014.7.12702 URL: https://en.nbpublish.com/library_read_article.php?id=12702
Abstract:
The object of studies involves compromises in the implementation of the state policy of the Russian Federation in the sphere of fighting corruption as means of resolving legal contradictions. The goals of study include the following: analysis of the normative legal acts of the Russian Federation allowing for the use of compromises in the implementation of the state policy in the sphere of fighting corruption; analysis of the practice of using compromises when implementing state policy of the Russian Federation in the sphere of fighting corruption; development of proposals for the further studies of compromises in the implementation of the state policy of the Russian Federation in the sphere of fighting corruption. The methodological basis for the studies involves dialectic method of cognition of social matters and processes taking place in the society and general scientific methods of scientific cognition: analysis, synthesis, extrapolation and other methods used in social sciences. For the first time in the Russian legal science the author analyzes the possibility and substantiates the need for compromises in the sphere of fighting corruption, paying attention to the overly radical approach to fighting corruption in the modern Russian federal anti-corruption legislation and related legislation on the state service.
Keywords:
corruption, fighting corruption, anti-corruption policy, fighting corruption, compromise, legal regulation, use of compromise, anti-corruption practice, corruption offence, disciplinary offence
Reference:
Zvyagin V.N., Usacheva L.L., Narina N.V..
Method for defining the Caucasian - Mongoloid racial identity based on physeognomic elements.
// Legal Studies.
2014. № 3.
P. 70-93.
DOI: 10.7256/2305-9699.2014.3.9967 URL: https://en.nbpublish.com/library_read_article.php?id=9967
Abstract:
The racial identity of an individual is one of the group characteristic features of a person, and there is need for its diagnostics in various expert situations. It may include expert evaluation of a live person, filling in an authentication card for a corpse, description of a corpse of an unidentified person, provision of a verbal description of a missing person or a criminal suspect, description of appearance based on photo portraits for further identification or comparative studies, diagnostics based on scull, teeth and bones of post-cranial skeleton in the expertise of skeletized remains, reconstruction of the appearance based on skull, etc. In other words, the necessity for the racial identification of an individual is obvious. The author offers a list of features for establishing whether an individual belongs to a certain race. The author offers to amend the existing list for expert evaluation of living persons and studies of photographs of persons of known racial identity with the different list of elements and provide statistical substantiation for the deciding rule in expert opinions. The author also establishes the number of elements is necessary or sufficient for the positive or relative inclusion of an individual into one of two (Caucasian or Mongoloid) races, making a conclusion on the mixed origin or refusal to make a decision. The procedure for evaluation of each element is provided in detail, and the expert approbation for the method is provided. The author considers that in the future the analogous approach shall be used for the formation of the list of race-diagnostic somatic elements.
Keywords:
Caucasian - Mongoloid identity, racial identity, physeognomic elements, corpse description, scull-based reconstruction, anatomical characteristics, phenotypical manifestation, forensic practice, judical medical practice, racial-diagnostic physeognomic characteristics
Reference:
Yurchenko M.A., Pigolkin Y.I., Fedulova M.V..
Age-related specificities of bones in the human hand.
// Legal Studies.
2014. № 3.
P. 94-101.
DOI: 10.7256/2305-9699.2014.3.9971 URL: https://en.nbpublish.com/library_read_article.php?id=9971
Abstract:
Various methods may be applied in order to diagnose the age of an individual. The radiographic methods are among the most popular methods. They allow to establish age, sex, race of an individual, and in some cases they serve as the basis for the individual identification. The classical object of radiographic studies in anthropology is skeletal bones of a hand and a forearm outlimb, which is due to the technically uncomplicated method of getting an radiographic picture and a large amount of studies on variations of anatomy of these skeletal parts. The researchers evaluated the old-age related characteristics (such as osteoporosis and joint space narrowing) as well as compensatory and adjusting element (sclerosis, osteophyma). The defect (not allowing to apply this method in judicial medicine) is that depending on the ageing tempo expert radiographic picture may include 6 to 24 age markers. It makes authentic and practically valuable expertise of an individual situation based upon the scheme possible, requiring formation of an expert method, which would be applicable for the differentiated evaluation of the individual age. Currently there is need to widen the specter for the modern research methods, use of a larger number of organs and systems for more clear and comprehensive analysis of human biological age, for the further formation of a principal algorithm of studies.
Keywords:
human hand bones, age specificities of bones, radiographic methods, forearm outlimb, means of getting an X-ray, variative anatomy, diagnostic mistakes, proximal phalanx, osteoporosis, knots and exostosis
Reference:
Zvyagin V.N., Fomina E.E., Rakitin V.A..
Fundamentals for the computer point-digital model of dermal glyphic characteristics of the phalangettes.
// Legal Studies.
2014. № 2.
P. 95-104.
DOI: 10.7256/2305-9699.2014.2.9966 URL: https://en.nbpublish.com/library_read_article.php?id=9966
Abstract:
Over 20 years of development of Russian judicial medical dermal glyphic studies show that the it may be applied only via creating computer software. It is undoubted that the "Dermatogliphica" software, which was developed in 124 SML in 1996 was a significant achievement of the practical dermal glyphic studies. However, search and definition of elements was by visual examination, and marking was done by hand, which included a subjective element into the complex of identification issues resolved based on dermal glyphic studies. The article is aimed at minimizing the influence of subjective factor when interpreting dermal glyphic elements. In order to create such a classification, new decisions on structural basis for the papillary pictures and their coordinate basis, method for the ridge count and other characteristics of the papillary pictures. Dermal glyphic studies and dactylography have many classifications, which were developed depending on the goals, which needed to be achieved in a certain branch of science (clinical medicine, judicial medicine, criminalistic anthropology, etc.). That is why there is a large variety of sub-types of curves, loops and curls depending on height and orientation of the pattern, its symmetry or assymmetry, forms and structure of lines in the central part of the pattern and other characteristic features, reflecting the details in the structure of the papillary pattern, and this work includes an attempt to provide their mathematical description.
Keywords:
phalangettes, dermal glyphic characteristics of the phalangettes, practical dermal glyphic studies, dermal glyphic elements, criminalistic anthropology, Galton's positions, interphalangeal line, ridge counting, distal skeletal line, metric meaning of the pattern
Reference:
Kutsenko K.I., Kul'bitskii B.N., Makarov I.Y..
Micro-morphological specificities of the firearms wounds caused by the pistol "MR-79-9TM" with blank cartridges.
// Legal Studies.
2014. № 2.
P. 105-112.
DOI: 10.7256/2305-9699.2014.2.9968 URL: https://en.nbpublish.com/library_read_article.php?id=9968
Abstract:
In order to study micro-morphological characteristics and specificities of the firearms wounds caused by the shots with blank cartridges (BC) in the conditions of the shooting range of the judicial medical ballistic laboratory of the Russian Center for Judicial Medical Expertise of the Ministry of Healthcare of Russia the authors had an experimental shooting with blank cartridges (produced by AKBS) fired with the 9,0 mm pistol MR-79-9TM. For comparison the authors used traumatic cartridges (TC) with the shot energy 50 J (produced by KSPZ). Experimental damage was studied based on biological test dummies - corpses of three pigs age 4-5 months, which were slaughtered 2-3 hours before the experiment. The shots were fired from various distances to various body parts with consideration to the anatomical position of internal organs and bones. The author states that the histological study of wounds caused by firearms on the biological test dummy caused by the shots with BC and TC from various ranges showed the verifiable differences in the character of damage, traces of soot and gunpowder on the skin and in the wound channel beneath the skin, on skeletal muscles and internal organs. Based upon the complex of characteristic diagnostic elements, the authors prove the possibility for the application of the method of color micro-drop chemical reactions with the use of Griess reagent in order to establish the fact of shooting with the blank cartridges, and for differential diagnostics between the blank cartridges and traumatic cartridges.
Keywords:
firearms wounds, micromorphological specificities, shots with the blank cartridges, damage to internal organs, histological study, nitrite-containing microparticles, color microchemical reaction, point-blank shot, desquamation of the epidermal layers, curved cell wall
Reference:
Zvyagin V.N., Galitskaya O.I., Fomina E.E..
Program diagnostic complex "grade-rec": biometric sorting and reconstruction of destroyed corpses in emergency situations.
// Legal Studies.
2014. № 1.
P. 75-85.
DOI: 10.7256/2305-9699.2014.1.9963 URL: https://en.nbpublish.com/library_read_article.php?id=9963
Abstract:
The natural and technogenous catastrophes, terrorist acts have numerous victims. The possibility for the identification of the dead is usually dependent upon the level of destruction of the corpses. This principle serves as the basis for the judicial medical sorting in emergency situations. The final aim of sorting is to establish which of many various fragments belong to corpses of specific persons. Reconstruction of destroyed corpses by their parts has humanitarian and religious value in addition to expert practical importance. Success of body part sorting (either direct or computer-based "assembly" by separation planes and anatomic property) depends on lack of significant corpse fragmenting and limited number of victims. In most other cases this target is achieved after laboratory studies, and not in real-time mode. Based on above-mentioned issues, the topical problem for the judicial medical expertise at the focal point of the emergency situation is practical introduction of the specialized program diagnostic complexes, allowing to automatize the process of sorting of destroyed corpses and to restore their entirety and to form an electronic database on group and individual personal characteristics.
Keywords:
grade-rec complex, body part sorting, reconstruction of destroyed corpses, identification of a dead person, judicial medical sorting, judicial medical expertise, reconstruction module, PDC "Grade-Rec", program diagnostic complex, sorting corpse fragments
Reference:
Zemskova E.Y., Ivanov P.L., Leonov S.N., Timoshenko T.V..
Polymorphism of nucleotide sequence as a source of improvement of information quality for the str-markers of the autosomal human DNA.
// Legal Studies.
2013. № 12.
P. 122-126.
DOI: 10.7256/2305-9699.2013.12.9973 URL: https://en.nbpublish.com/library_read_article.php?id=9973
Abstract:
The search for the ways to improve efficiency of molecular biological identity analysis is one of the topical vectors of development of the modern judicial medical genetic analysis. Transfer to alternative (more informative) methods of studying of previously known molecular markers may be the solution of this problem. For example, defining the polimorphism lengths of amplified fragments by capillary electrophoresis is a classical approach towards the studies of short tandem repeats of the human DNA. At the same time, it is know that most of spheres of human genome have sequence polymorphism. However, the elctrophoretic separation of the DNA fragments fails to give information on the polymorphism of this type, since it allows only to establish the length of analyzed amplicon. An ideal method for the polymorphism analysis of sequence in any DNA fragment is its direct sequencing. However, it is a long and labor-intensive approach, and it precludes any large-scale studies in this direction. As an alternative to direct sequencing may be found in mass-spectrometric analysis of amplified DNA fragment. High degree of precision of defining molecular mass of amplified fragments allow both to define the length of a fragment, which is being studied, as well as deviations from the expected (known) base composition. The allel "breakdown" effect in STR-locuses into several options of forms (classic and including SNP) may guarantee greater information value of an expert opinion.
Keywords:
Polymorphism of nucleotide sequence, autosomal human DNA, informative character of str-markers, judicial and medical genetic analysis, molecular markers, capillary electrophoresis, sequence polymorphism, separation of the DNA fragments, molecular genetic studies, allel distribution
Reference:
Khokhlov V.V., Andreikin A.B..
Specific features of judicial medical expertise on "medical cases" at the current state of development.
// Legal Studies.
2013. № 12.
P. 114-121.
DOI: 10.7256/2305-9699.2013.12.9978 URL: https://en.nbpublish.com/library_read_article.php?id=9978
Abstract:
In cases regarding responsibility of medical staff for failure to properly perform their functions the investigators and the court have to face a number of special issues, especially correct diagnosis and course of treatment of the patients and the causal link between these factors and the grave negative consequences of medical mistakes. In the late years more and more doctors are brought to responsibility for professional offences, and preliminary stage-by-stage analysis of information obtained by the investigation on these issues becomes especially important. The author notes that often bad quality of examination complicate decision-making in the sphere of evaluation of uncovered offences, and requires judicial medical expertise by a commission of experts, even in the cases when it could have been avoided. The author notes that in order to have an objective evaluation it is reasonable to assign expertise to be performed in another region, which has a medical higher education institution and traditionally good quality of such expertise, and it is also necessary to guarantee the payment for the work of experts and non-staff medical specialists. The author also states that it is almost impossible to obtain an objective evaluation from local healthcare specialists in the regions where there are no higher medical institutions due to the corporate loyalty.
Keywords:
responsibility of medical workers, criminal responsibility, prosecution, healthcare bodies, Compulsory Medical Insurance Fund , investigation term, legislation, negligence, judicial medical experts, investigative activities
Reference:
Akhrameeva O.V..
Unobvious obstacles in achieving the goals of injunctions.
// Legal Studies.
2013. № 12.
P. 95-113.
DOI: 10.7256/2305-9699.2013.12.1033 URL: https://en.nbpublish.com/library_read_article.php?id=10330
Abstract:
The article concerns injunctions as one of the key institutions of the arbitration process. These measures guarantee future enforcement of a judicial act, and at the same time they preserve the positions of parties to the process in the status prior to when the process was started. However, the fast decision-making in the sphere of temporary limitations to some acts may cause inpredictable circumstances, and it may be contrary to the goals and aims of injunctory measures. The author analyzes the legislative requirements and the guidelines of the higher judicial instances regarding claims (requests) for application of injunctions, and provides examples based on judicial arbitration practice. Additionally, the author analyzes the sphere of land relations in order to show examples of obstacles in the implementation of injunctions according to claims of the parties. The author makes a conclusion that fast decision-making on such claims may lead to abridgements of rights of third parties, and it may be proven by the judicial practice. The author shows the correlation between the public and the private elements in regulation of land relations, and the author considers that the judges should take into account the interests of an indefinite range of persons, when making a decision on the claim for the application of an injunction.
Keywords:
arbitration process, injunctions, agricultural lands, public interest, private interest, arbitration practice, the Land Code, negatory claim, prohibition to perform works, enforcement of a judicial act
Reference:
Tolpegin P.V..
Non-judicial protection in judicial process: the right of the party to a case to be familiarized with the medical documents requested by the court
// Legal Studies.
2013. № 11.
P. 112-125.
DOI: 10.7256/2305-9699.2013.11.9805 URL: https://en.nbpublish.com/library_read_article.php?id=9805
Abstract:
The article is devoted to simultaneous study of two legal aspects. The first aspect concern non-judicial approach to protection of lawful rights and interests of a person in cases when such rights are infringed within judicial process, however, it is not possible to challenge the acts of a judge into a court of higher instance. The second aspect provides a direct response to an issue of whether a party to a civil case may get acquainted with the medical documents requested by the courts. The ambiguity within this issue is due to the fact that medical documents requested by the court as such are not evidence (while the expert opinion based on it is evidence), but the medical documents may be subject to graphologic or other type of expertise. The problems are analyzed based upon the facts of a specific civil process, where the author used non-judicial protection in the form of being familiarized with the materials of the case with the assistance of various officials and official bodies, including the Chairperson of a District Court, Chiefs of the Court of the Constituent Subject of the Russian Federation, Administration of the President of hte Russian Federation and the Plenipotentiary on Human Rights in the Russian Federation. The author proves efficiency of non-judicial forms of protection of subjective rights and lawful interests even in an on-going judicial case.
Keywords:
human rights, judicial expertise, medical secret, addresses of citizens, protection of rights, judicial process, non-judicial protection, medical secret, plenipotentiary, rights of citizens
Reference:
Badikov K.N..
Practical vector of psychodermatoglyphic method in diagnostics of criminal behavior.
// Legal Studies.
2013. № 10.
P. 175-191.
DOI: 10.7256/2305-9699.2013.10.9771 URL: https://en.nbpublish.com/library_read_article.php?id=9771
Abstract:
Integration of the Russian Federation into the global community is impossible without providing for greater efficiency of crime investigation. Introduction of innovative methods into the forensic tactics is related to the individual approach to personality. An important quality of dermatoglyphic expertise within the trasology framework is their diagnostic vector and the possibility for the formation of psychological profile. The Russian psychological science evaluates the behavior from the psychopathology standpoint or from the standpoint of social and psychological status of a person. The psychodermatoglyphic studies regard deviant behavior within the integral approach to psychological processes and conditions. Evaluating a personality as a complicated integrated system, one may find deviant behavior showing itself in certain dismorphological markers - certain dermatoglyphic characteristics. The said approach shows correlation between biological and social behavior elements (including deviant ones), and it also shows unity of morphology and psychology of a person. As a result, the integration of the "central nervous system - morphology - behavior" gains special value for psychodermatoglyphic expertise, and it is due to functional bilaterization of brain from the standpoints of hemodynamics and specialization of brain hemispheres within the ontogenesis framework.
Keywords:
dermatoglyphs, psyche, behavior, print, marker, criminal, forensic studies, integration, investigation, psychomodel
Reference:
Badikov K.N..
Psycho-dermal-glyphic analysis in clinical personology of persons with unlawful behavior.
// Legal Studies.
2013. № 7.
P. 148-167.
DOI: 10.7256/2305-9699.2013.7.8823 URL: https://en.nbpublish.com/library_read_article.php?id=8823
Abstract:
Taking the brain pathology into account when forming a psychological profile allows us to understand the causes of unlawful behavior. An innovative method of formation of a psychological profile via psycho-dermal-glyphic means requires development of a reflected stereotaxic brain model at a localized area - phalangettes of thumbs. The specific dermal glyphic elements (minutia) serve as diagnostic markers for various psychological conditions and statuses. The scientific literature provides for a vast variety of articles on neurobiological causes of unlawful behavior. Psycho-dermal-glyphic studies unite neurobiological, neuropsychological and psychogenetic study results. The value of psycho-dermal-glyphic method is found in formation of a psychological profile in the conditions when palm prints at a crime scene are minimal. Classification of character accentuations is much similar to the system of psychopaties. The psychodiagnostic practice traditionally provides for the personality accentuations based on complex clinical and experimental - psychological studies. The psycho-dermal-glyphic analysis is performed from the standpoint of integration approach to emotional and sensuous sphere of a person. Development of topical issues in the sphere of aetiology and pathogenesis of brain pathology and its minimal clinical forms draws closer towards forecasting and psychodiagnostics of behavior, unlawful behavior included. The goal of psycho-dermal-glyphic studies is to single out dermal glyphic and psycho dermal glyphic markers of dysembryogenesis of the central nervous system, the congenital brain pathologies and its minimal clinical forms.
Keywords:
forensic studies, trasology, psyche, behavior, brain, psycho-dermal-glyphic studies, minutia, print, psychopathology, genotype
Reference:
Akhrameeva O.V..
Establishing jurisdiction of a court in cases on challenging contractual obligations in a contract with an undefined place of performance.
// Legal Studies.
2013. № 7.
P. 168-176.
DOI: 10.7256/2305-9699.2013.7.8939 URL: https://en.nbpublish.com/library_read_article.php?id=8939
Abstract:
Stability and predictability serve as a basis for the relations among economic subject. And one may refer to stability also with the references to the judicial cases on disputes among the contractual parties, when the possibility for such conflict resolution is provided in the contract. However, some parties make mistakes in this respect, such as failure to mention the place of contractual performance, forming an obstacle to lawful conflict resolution. Most of contracts for sale of goods, performance of work, and provision of paid services do not refer to place of performance under the contract. Usually the parties mention a place where the contract was concluded as well as the place of factual performance of an obligation - handing the goods over to a buyer, provision of results of work to a customer, provision of services. It might seem that there is no practical need to refer to a place of performance under a contract. However, presence of such a clause in a contract allows to use the right for alternative place of jurisdiction instead of filing a claim at the place of residence of a respondent. On the opposite, in the absence of such a clause the possibilities for the use of alternative jurisdiction are often misunderstood.
Keywords:
jurisdiction, place of performance under a contact, place where works are performed, general rules of jurisdiction, jurisdiction clause, alternative jurisdiction, place of performance of an obligation, violating the rules on jurisdiction, contractual jurisdiction, exclusive jurisdiction
Reference:
Yarovenko V.V., Karataev A.V..
Criminological characteristics and urgent investigative actions on cases on unlawful hunting.
// Legal Studies.
2013. № 5.
P. 351-377.
DOI: 10.7256/2305-9699.2013.5.791 URL: https://en.nbpublish.com/library_read_article.php?id=791
Abstract:
The article concerns the elements of criminalistic characteristic features of unlawful hunting, which allow to establish necessary information on every particular crime due to their similarities: criminal behavior of offenders, circumstances and mechanisms of perpetrating and concealment of criminal act, character and gravity of damage. Combination of various methods of unlawful hunting usually appear due to the influence of various external factors at the place of crimes as well as to specific features of personalities of offenders. After the crime the poachers often take measures to conceal the crime, which complicates the process of proving guilt of an arrested offenders. When deciding to violate the hunting rules, a person counts upon hidden character of his acts, absence of witnesses, and destruction of traces of crime. It is shown that timely and professionally performed urgent investigative activities, such as the examination of the crime scene, interrogation, arrest, search and seizure, judicial expertise allow to establish the fact of unlawful hunting of a suspect and degree of his guilt, character and amount of material damage, causes and circumstances of the crime.
Keywords:
poaching, illegal hunting, arms, investigation, traces, examination, arrest, search, expertise, damage
Reference:
Trofimets I..
Some problems regarding invalidity of marriage in accordance with the legislation of Russia, the CIS Member States and the Baltic States.
// Legal Studies.
2013. № 5.
P. 378-454.
DOI: 10.7256/2305-9699.2013.5.810 URL: https://en.nbpublish.com/library_read_article.php?id=810
Abstract:
The article is devoted to the key problems regarding invalidity of marriage under the legislation of Russia, the CIS Member States and the Baltic States, as well as some other states. The author studies topicali issues regarding the nature of institution of invalid marriage. The author analyzes the procedure for recognizing a marriage as an invalid one. Nevertheless, the range of issues discussed by the author does not cover the entire list of legislative and practical legal problems in the sphere of invalidity of marriages. It is noted in the article that any state is interested in healthy sustainable families. The law forms various legal barriers against obviously inadequate marriages. However, in spite of legal prohibitions, there are some violations when marriages are being concluded. The presence of fault in the marital conditions does not automatically make a marriage invalid, and some of these violations do not necessarily cause invalidity of marriage.
Keywords:
marriage, invalidity recognition, recognition conditions, recognition procedure, foreign law, legal practice, foreign experience, international law, sanation, consequence
Reference:
Gavrilov V.N..
Role of notary in inheritance registration.
// Legal Studies.
2013. № 4.
P. 286-300.
DOI: 10.7256/2305-9699.2013.4.667 URL: https://en.nbpublish.com/library_read_article.php?id=667
Abstract:
The article is devoted to the issues of registering the transfer of proprietary right in cases of inheritance. The author analyzes role and competence of a notary and other persons taking part in the registration of inheritance rights, interaction between notary and tax bodies. The author also provides for a detailed classification, analysis of terms, procedure and possibilities for the preliminary provision of inheritance certificate and the grounds for it, as well as specific features of registering the escheat. He also studies the legal nature of the certificate for the right to a share in a common property of spouses, as well as technical and organizational issues regarding registration of inheritance rights depending on the type of inherited property and proprietary rights. The author analyzes types of documents allowing the notary to interpret the testament. Attention is paid to the range of persons having a right to file a claim in court regarding invalidity of an inheritance certificate. The author finally provides comparative legal analysis between the Russian legislation and the legislation of a number of foreign states in the sphere of inheritance regulation.
Keywords:
certificate, types of certificate, proof of relation, Nasciturus, share of a spouse, notary, tax bodies, escheat, proprietary right, testament interpretation
Reference:
Tokareva K.G..
Property-related tax deduction: the problems of legal practice.
// Legal Studies.
2013. № 3.
P. 330-337.
DOI: 10.7256/2305-9699.2013.3.551 URL: https://en.nbpublish.com/library_read_article.php?id=551
Abstract:
The only provision of the Tax Code of the Russian Federation on property-related tax deduction is Art. 220 of the Criminal Code of the Russian Federation. However, there is a large number of practical problems related to them. Considerable amount of disputes arises between tax bodies and good faith taxpayers on the excess amounts paid. The article concerns some topical aspects regarding implementation of a right for the property-related tax deduction, in particular, the complications with getting the Personal Income Tax (NDFL-2) report at the place of work. The author recommends taxpayers to require provision of NDFL-2 report by written notification by registered mail, or address the Labor Inspection. The article also includes discussion of the problems regarding violations on the period of payment on property-related tax deductions. In such cases a taxpayer should address the tax body and require that the payment of interest for the unlawful use of money due to him would be paid and provide the calculation. If the delay is significant, the taxpayer should file complaints on the acts of tax inspection to the relevant Division of the Federal Tax Service in his region.
Keywords:
refinancing rate, delay, untimely return, report, declaration, tax deduction
Reference:
Yarovenko V.V., Atanova K.A..
Forensic expertise of falsification.
// Legal Studies.
2013. № 3.
P. 318-329.
DOI: 10.7256/2305-9699.2013.3.612 URL: https://en.nbpublish.com/library_read_article.php?id=612
Abstract:
It is shown that currently the criminals legalize unlawfully obtained card via various falsifications in the sphere of registration, customs clearance and transfer of proprietary rights to a vehicle. There are more and more cases when the automobiles are sold with fully counterfeit vehicle registration documents, as well as cases of unlawful changes in such documents. The main means of counterfeiting are erasure, etching, washing, adding of information, drawing, and falce information is usually provided on the year when an automobile was produced, engine volume, date of registration, and date of registration closure. In cases when an automobile was used for personal needs, special marks are destroyed. The authors analyze the practice of assigning and holding judicial technical and forensic expertises of vehicle registration passports. Knowledge of these means of falcification is necessary when holding visual examination in the process of registration and verification of documents on the road by the State Traffic Safety Inspectorate officers, and it may be helpful for the buyers of vehicles.
Keywords:
automobile business, passport, document, counterfeit, forgery, expertise, erasure, adding information, etching, transportation vehicle
Reference:
Aleksova A.V., Yarovenko V.V..
Theoretical and Practical Issues of Ballistics Tests for Defining the Relevance of an Object
// Legal Studies.
2013. № 1.
P. 223-250.
DOI: 10.7256/2305-9699.2013.1.425 URL: https://en.nbpublish.com/library_read_article.php?id=425
Abstract:
The article is devoted to special features of the expertise for defining the relevance of an object to firearms. Due to the fact that the expertise methods for illegally produced weapon have certain features, the author discusses peculiarities of studying the material part of weapon during the expertise as well as methods of proof firing. To prove his conclusions, the author describes examples of expertise experience and views typical expert's mistakes which may be made in the process of the expertise.
Keywords:
expertise, expert, investigator, weapon, investigation, expert evidence, expirement, firing, expert's mistakes, conclusions
Reference:
Badikov K.N., Yarovenko V.V..
Age and Nosological Correlations in Psychodermatoglyphic Researches
// Legal Studies.
2012. № 5.
P. 196-217.
DOI: 10.7256/2305-9699.2012.5.368 URL: https://en.nbpublish.com/library_read_article.php?id=368
Abstract:
Psychodermatographic method of age determination allows to narrow the circle of suspects. This method is based on the patterns of evolution and involution processes ongoing at the cell level and reflected on papillary pictures: the crests are 'worned out' and fingerprints lose their identification features. It has been established that in the first place the ageing processes are reflected in dermatoglyphics of the first finger on the right and left hands. It is the dermatoglyphics of the first finger which is the genetic marker not only of the brain activities, but also of significant diagnostic criteria of ageing.
Keywords:
personality, age, behavior, dactylography, dermatoglyphics, morphology, diagnostics, research, expert, detection
Reference:
Yarovenko V.V..
Issues of Application of Special Knowledge to Inspecting Various Kinds of Firearms and Ammunication
// Legal Studies.
2012. № 2.
P. 146-163.
DOI: 10.7256/2305-9699.2012.2.165 URL: https://en.nbpublish.com/library_read_article.php?id=165
Abstract:
The article is devoted to the analysis of application of special knowledge to inspecting various kinds of firearms and ammunication. The study allowed to define the most typical mistakes made by investigators when discovering, forfeiting weapons and conducting ballistics tests. The author suggests to make a number of amendments to the current criminal procedure legislation.
Keywords:
special knowledge, judicial ballistics, expertise, procedural law, investigator, specialist, expert, expert's conclusion, objects of expertise, demonstrative evidence
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