No 2 (2020)
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ТЕОРИЯ И ИСТОРИЯ ГОСУДАРСТВА И ПРАВА; ИСТОРИЯ УЧЕНИЙ О ПРАВЕ И ГОСУДАРСТВЕ
2-6 118
Abstract
The article touches upon a number of issues related to the consolidation of the principle of ethno-cultural realization and protection of ethnic identity in modern Russian legislation at the Federal and regional levels. This principle should be doctrinally recognized as a General legal principle of law, since it is widely enshrined in legislation in various aspects and determines the direction of legal regulation in a number of spheres of public life.
КОНСТИТУЦИОННОЕ ПРАВО; КОНСТИТУЦИОННЫЙ СУДЕБНЫЙ ПРОЦЕСС; МУНИЦИПАЛЬНОЕ ПРАВО
7-11 119
Abstract
The article analyzes the issues of electoral (electoral) democracy in Russia, defines its conditions, factors and limits. The author's proposals on strengthening electoral democracy taking into account the needs of the constitutional development of the Russian Federation are formulated.
CIVIL LAW; BUSINESS LAW; FAMILY LAW; PRIVATE INTERNATIONAL LAW
12-16 256
Abstract
In the article the problems of personal insurance contract for infectious disease COVID-19 are considered. Legal regulation of this type of contract is analyzed. Gaps in legislation were identified, and the lack of uniform rules for insurance against infectious diseases was shown. In the article, the author substantiates the need to create rules aimed at protecting the interests of the insured. It is proposed to adopt uniform insurance rules and fix the age of the insured person in them from 7 to 75 years; recognize as an insured event the disease of a patient who is on outpatient treatment, as well as a positive test from the laboratory for coronavirus; allow the recognition of a repeat disease as an insured event during the period of validity of the policy; expand the range of chronic diseases, in the presence of which, the insured person can apply for insurance services of this type; fix the minimum amount of insurance payment when an insured event occurs.
16-20 223
Abstract
The article describes the «collective» concept of shared ownership relations, which is based on the fact that the common property belongs to a collective of co-owners. Individual participants have the right to a share, which simultaneously confirms their membership in the community of owners, acquiring common features with the share of company. Checking the correctness of the conclusions made, the author applies them to all the life stages of the relationship of shared ownership: the emergence, change and termination.
20-25 425
Abstract
The article is devoted to the analysis of Charles Dumoulin teaching which has served as a starting point for autonomy of will principle formation in Private International Law. The conclusion is grounded that this teaching was per se very far from the modern autonomy of will principle, first of all, due to the fact that autonomy of will, as conceived by Dumoulin, was used not as a rule, directly enabling to choose applicable substantial law, but as a flexible conflict of laws idea, allowing though construction of presumed intention to substantiate conflict of laws rule pointing to the best law. At the same time, it is acknowledged that brilliant idea of the scholar on legal meaning of the will of parties for the choice of applicable substantial law made a considerable impact on jurisprudence of states and, undoubtedly, was exactly the seed out of which the well-known in modern times autonomy of will principle in Private International Law has grown.
26-31 142
Abstract
Real estate as a category of civil law has always been the focus of attention of both the Russian legislator and the judicial arbitration practice. However, its importance is particularly acute today in connection with the draft Federal Law № 47538-6/5 "On Amendments to the First Part of the Civil Code of the Russian Federation," submitted for popular discussion, which proposed a new approach to its legal definition. The author is building an analysis of the innovations proposed for adoption by the legislator in terms of modern regional jurisprudence on tenants 'claims for the private ownership of land plots of agricultural land. The growing processes of structural change in ownership relations are obvious. At the same time, the author proves, it is important to prevent the deterioration of the quality and fertility of our arable land, which is largely provided by useful protective forest bands. Regional judicial practice is firmly based on the need to preserve forest fields and the areas to which they belong in public ownership. In the approaches taken by the courts, the author sees a very important and promising social significance. The article argues the need, first, to adopt an updated state plan for the conservation and development of useful protective forest bands; Secondly, the inclusion of useful protective forest bands in restricted land; Thirdly, assessing the effectiveness of new approaches to understanding immovable property solely from the perspective of citizens who live and work on agricultural lands.
CRIMINAL LAW AND CRIMINOLOGY; PENAL LAW
32-37 133
Abstract
The article is devoted to the peculiarities of the formation of the criminal legislation of the Transnistrian Moldavian Republic (hereinafter - PMR). Its specificity is expressed in the fact that for more than 10 years since the declaration of independence of the republic, the Criminal Code of the MSSR of 1961 acted on its territory; the current Criminal Code of Transdniestria of 2002 was taken as the basis of the Criminal Code of the Russian Federation in 1996; At the present stage, the legislative description of individual institutions is regularly adjusted in accordance with the socio-economic conditions of the region and the needs of its law enforcement practice. At the same time, the conceptual foundations of the construction of the criminal legislation of the PMR were not an independent subject of monographic research. This article provides a comparative analysis of the main provisions of the General Parts of the Criminal Codes of the PMR and the Russian Federation. As a result, it was concluded that they are very similar, but not identical. When comparing the legislative description of the institution of punishment, it was established that the Criminal Code of the Russian Federation of 1996 has a more liberal character both in terms of the list of punishments not related to isolation from society and the terms (sizes) of punishments. At the same time, the conceptual foundations of building the Criminal Code of the Republic of Moldova are fundamentally different from the Criminal Code of the PMR. Emphasis is placed on the unique experience of Transdniestria regarding the interpretation of legislation enshrined at the constitutional level and actually implemented by the supreme legislative body - the Supreme Council of Transdniestria. In the context of the above, the primary direction of optimization of the Criminal Code of the PMR of 2002 is the improvement of legal technology and harmonization of systemic links between its various regulatory requirements, as well as the achievement of terminological accuracy in regulatory legal acts and other official materials of various legal force and nature.
38-43 247
Abstract
The article is devoted to the analysis of the system of punishments contained in the first Soviet codified legislative act in the field of criminal law - the Guiding Principles on Criminal Law of the RSFSR of 1919, which served as the regulatory framework for the subsequent Criminal Codes of the Soviet era, as well as the modern Criminal Code of the Russian Federation. It is noted that the Guidelines presented a different approach to the construction of the punishment system (while preserving a certain continuity), different from all sources of law, the principles of which were applied in the relevant legislative activities in subsequent periods. As a result of the study, the authors conclude that the Governing Principles on the Criminal Law of the RSFSR laid the normative basis for constructing the “ladder” of punishments and, to some extent, securing the content of the latter in the current legislation.
CRIMINAL PROCESS
44-50 217
Abstract
The article describes the criminal procedural mechanisms used in criminal proceedings on crimes committed in the sphere of business and other economic activities. The novels, which are fixed at the legislative level, have caused a mixed reaction from the scientific community. The practical application of existing and introduced criminal procedural mechanisms to protect the rights and legitimate interests of entrepreneurs has created numerous problems. A number of decisions of the Plenum of the Supreme Court of the Russian Federation adopted in recent years have been sent for their resolution. In the future, we expect further legal regulation of public relations in the context of the formation of an understandable and fair law enforcement system designed to effectively protect the basic economic rights and freedoms of business and, in General, the economic security of the Russian state.
51-57 389
Abstract
This article deals with problematic issues related to the definition of verification of evidence in criminal proceedings. Attention is drawn to the fact that the correct identification of the essence and concept of verification of evidence in criminal proceedings depends on the proper definition of the goals and methods of this type of activity. At the same time, verification of evidence in criminal proceedings is continuous in the course of the proof process, it combines logical and thinking techniques inherent in the assessment of evidence, and practical activities that are a sign of collecting evidence. The author is critical of the current wording of article 87 of the code dedicated to the verification of the evidence.
58-63 144
Abstract
The implementation of the set of protective measures provided for by Russian law against participants in criminal proceedings can be seen not only in the pre-trial proceedings in criminal proceedings, but also during the judicial stages. At the same time, confidentiality of all activities of this complex mechanism of personal security is important. Activities to eliminate the circumstances that have contributed to the criminal disclosure of security measures will increase the security of the person in criminal proceedings and the execution of the appointment of criminal proceedings in general. The investigation of criminal cases of disclosure of information on security measures of participants in criminal proceedings, in our opinion, should be accompanied by a prerequisite for establishing the circumstances that contributed to the disclosure of such information. Such a duty to establish circumstances should be placed both on the investigator (art. 158, para. 2, of the Code of Criminal Procedure of the Russian Federation) and on the court (judge) (art. 29, para. 4, of the Code of Criminal Procedure of the Russian Federation), with appropriate amendments and additions to legal regulations.
64-69 189
Abstract
It is substantiated that the legal positions of the European court of human rights, ambiguous approaches in domestic practice to the interpretation and application of the provisions of article 142 of the criminal procedure code of the Russian Federation regarding the participation of counsel when the confession has led to the development of the draft law on the voluntary report a crime in the presence of counsel. According to the Federal chamber of lawyers, the implementation of the draft law would reduce the number of cases of illegal influence on a person who turned himself in, but with a critical assessment of the alternative proposed in the draft - the possibility of a statement of surrender in the absence of a lawyer, but with the mandatory use of video recording.
70-76 170
Abstract
A study has been carried out on part of the rules relating to evidence before the court of appeal, including their presentation, evaluation and verification. The question of the possibility of submitting new evidence to the Court of Appeal has been analysed in detail. The author draw conclusions on the appeal court 's ability to establish the factual facts of the case on the basis of the evidence available in the case and presented by the parties during the proceedings. The author 's position on the provisions of chapter 45.1 of the Code of Criminal Procedure of the Russian Federation is presented and clearly argued. Features of appeal consideration of criminal case are shown, comparative analysis of concepts of "new evidence" and "additional materials" is carried out.
76-80 98
Abstract
In the article, the author draws attention to the need to build a fair and adversarial criminal process, since often the defense side is faced with a number of obstacles in the exercise of its rights. Difficulties arise both in the collection of information relevant to the case by sending a lawyer's request in connection with the restricted access regime, and in the integration of the information received in the criminal case. The author proposes to solve this problem by introducing into the current legislation a legal mechanism aimed at the real endowment of representatives of the defense party with additional tools to assert their legal position by presenting objects and documents with evidence of evidence to the court. The introduction of such a figure as an investigating judge can also contribute to this. The main task of the latter will be to resolve issues about the possibility of including information obtained by a lawyer in the list of evidence like other documents.
FORENSICS; FORENSIC ACTIVITY; OPERATIONAL-SEARCH ACTIVITY
81-85 177
Abstract
The article analyzes some forensic aspects of documenting and investigating crimes in the field of illegal cash withdrawal. On the basis of examples of law enforcement practice, the methods of committing the studied category of crimes are considered, and a forensic analysis of an organized criminal group is conducted. There is a high level of latency of these crimes, as well as the need for a complex of operational search measures aimed at documenting criminal activity. A number of recommendations are made to improve the detection and investigation of illegal cash withdrawals.
85-90 122
Abstract
At the present stage, the legislation that regulates the functioning of the Institute of informed voluntary consent has changed significantly in the Russian Federation. Article 20 of Federal law No. 323-FZ of November 21 establishes the right to informed voluntary consent (IDA) for medical intervention and to refuse it. By order of the Ministry of health of Russia of 20.12.2012 N 1177n approved: the procedure for granting and refusing medical intervention IDS for certain types of medical interventions, the form of medical intervention IDS, the form of refusal of medical intervention. Federal law of 25.11.2013 N 317-FZ expanded the powers of the court in terms of making a ruling on medical intervention without the consent of a citizen, one of the parents or other legal representative in cases where it is necessary for emergency reasons to eliminate a threat to human life and if his condition does not allow him to Express his will or there are no legal representatives. Federal law of 06.03.2019 N 18-FZ changed the procedure for making a decision on medical intervention without the consent of a citizen, one of the parents or other legal representative when providing palliative medical care, if the condition of the citizen does not allow him to Express his will. This research is aimed at studying the problems related to the implementation of the citizen's right to IDC, which hinder the development of this institution in Russia. In particular, we consider the consequences of the formal approach of doctors to the implementation of receiving and signing IDS. We consider the shortcomings of the procedure for explaining the circumstances specified in the IDC, which are not always correctly perceived by patients or their legal representatives. The emphasis is placed on the absence of certain deadlines for familiarizing the patient with the content of the IDC form and making a decision about medical intervention. At the present stage, the IDC can be compiled in the form of an electronic document. In this case, it is signed using a strong qualified electronic signature or a simple electronic signature using a unified identification and authentication system. However, there are obstacles to registration of IDS in an electronic format to the legal and organizational nature. The analysis of the relevant normative base, regulating the implementation of law on IDS at the present stage, the positive aspects in the realization of the right of citizens to IDS identified problems the right to use and summarized the measures to improve the functioning of the institution of IDS in Russia.
АДМИНИСТРАТИВНОЕ ПРАВО; АДМИНИСТРАТИВНЫЙ ПРОЦЕСС
91-96 112
Abstract
The article considers the concept of insignificance of an administrative offense and the possibility of its application to administrative offenses committed in the field of legislation on cultural heritage objects. Based on the analysis of legislation and current judicial practice, it is concluded that such application is unacceptable and that it is necessary to correct judicial practice.
96-101 157
Abstract
The article examines innovative approaches to the development of the structure of modern Russian administrative law, conditioned by the federal organization of the state and international integration processes in the sphere of regulation of administrative and legal relations. The concept of integrative regulatory entities in the structure of the russian administrative law industry, integrative sub-sectors (institutions) of Russian administrative law, is substantiated.
КОНФЕРЕНЦИИ, СИМПОЗИУМЫ
102-110 81
Abstract
The article provides an overview of the materials of an online Symposium held at the Department of constitutional and municipal law of Kuban state University on the Microsoft Teams platform within the Krasnodar branch of the Interregional Association of constitutionalists of Russia, dedicated to constitutional reform in Russia.
ISSN 2078-5836 (Print)
ISSN 2782-5841 (Online)
ISSN 2782-5841 (Online)