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Legal Bulletin of the Kuban State University

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No 2 (2021)
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CONSTITUTIONAL LAW; CONSTITUTIONAL LITIGATION; MUNICIPAL LAW

2-8 1096
Abstract

The aim of this article is to analyze the federal territories which have become an element of Russian federalism in accordance with the latest revision of the Constitution of the Russian Federation.The objectives of the study include an analysis of the territorial nature of the federal state in its geographical and political and territorial relations; study of foreign experience in the functioning of federal te rritories in their species diversity; study of the status of the first federal territory "Sirius", as having the national strategic importance of public legal education, including its goal, the legal basis of activities, the territory, the organization of public authority, the implementation of local self-government.

The research methodology includes both the general scientific methods of cognition and private scientific means: a formal legal, comparative legal, systemic, whose combination has allowed to characterize the federal territory as a new and significant phenomenon of Russian federalism.

The originality of the study is predetermined by the novelty of the institute of the federal territory, which first received constitutional recognition in Russia.

The results of the study include the formulation of scientific and practical proposals for the construction of mechanisms for the formation of federal territories in Russia, taking into account the rights and interests of the subjects of the Russian Federation.

The study is accompanied by conclusions arising from the analysis of the Institute of Federal Territories and its implementation in Russia, in particular, the definition of a federal territory as an element of Russian federalism, which characterizes the political and territorial construction of the Russian Federation; determination of the federal territory as a separate and independent part of the territory of the Russian Federation, a special territorial element of the Federal Device of Russia; the need to adopt a model law on federal territories determining the mechanism for the allocation of the federal territory from the subject of the federation, the general principles for the construction and organization of the federal territory, the system of its bodies, interaction with federal and regional authorities; Availability of public authorities in the territory of public-legal education "Sirius" of signs of both government agencies and a local government body, their belonging to the independent type of public authorities.

CIVIL LAW; BUSINESS LAW; FAMILY LAW; PRIVATE INTERNATIONAL LAW

9-14 1171
Abstract

Digital technologies are transforming many areas of public life in the modern information society. Civil law acting as a classic branch of law is adapting to the conditions of widespread use of digital technologies. In the article digital rights are considered as one of the objects of civil law.

Purpose: to analyze digital rights as objects of civil law on the basis of the available theoretical provisions of the science of civil law.

Methods: dialectical, formal-logical and other general scientific research methods; special legal methods: formal legal, comparative legal. 

Findings: digital rights as one of the objects of civil rights are property rights existing exclusively in the information environment including digital financial assets and utilitarian digital rights as well as obligatory and other rights named as such in the law the content and conditions of which are determined in accordance with the rules information system that meets the criteria established by law.

CRIMINAL PROCESS

15-22 176
Abstract

The article presents the results of a study of the procedural powers of the prosecutor of the Socialist Republic of Vietnam in pre-trial proceedings in a criminal case. If there are some common features with the supervisory competence of the prosecutor in modern Russia, which is historically due to the influence of the legislation of the USSR and the RSFSR on the formation and development of the criminal procedure legislation of Vietnam, it should be noted that there are significant differences in the current status of the prosecutor of the SRV, especially in the totality and content of its powers. Taking into account the close «kinship» of the criminal procedure legislation of the Socialist Republic of Vietnam (SRV) and the Russian Federation, it makes sense to conduct a comparative legal study to establish current trends in their mutual development. The purpose of the study is to optimize the procedural status of the prosecutor of the SRV in the field of supervision of legality in pre-trial proceedings in criminal cases based on the experience of regulating the same status by the Russian legislator. The objectives of the study are: to study the Russian and Vietnamese experience in regulating the procedural status of the prosecutor in the field of ensuring the legality of the preliminary investigation; to conduct a comparative analysis of Russian and Vietnamese legislation; to identify problematic aspects in regulating the procedural status of the prosecutor of the SRV; to study the practical experience of prosecutorial supervision; to study the problem of improving the effectiveness of the prosecutor's performance of a number of procedural actions; to develop proposals for optimizing his procedural status.

The research methods are: dialectical, historical, analytical (logical, formal-legal, comparative-legal, system-functional), generalization.

Among the main results obtained:

- identification of circumstances that indicate the continuation of the trend towards the traditional, historically determined continuity of the formation of the content of the criminal procedure legislation of the SRV and the Russian Federation in terms of regulating the powers of the prosecutor;

– the legislation of the SRV in this part of the regulation is subject to the same problems as the Russian legislation, namely, the duality of the legal nature of the prosecutor's powers to supervise the legality of pre – trial proceedings in criminal cases; at the same time, the imperative of the relationship between the investigator and the prosecutor in the SRV seems to be more acceptable than the optional nature in Russian criminal proceedings;

– we regard as a significant advantage of the prosecutor of the SRV over his Russian colleagues, his right to conduct investigative actions, which give him the opportunity to personally participate in the preliminary investigation, directly receive the necessary information in sufficient volume, which allows him to make more balanced procedural decisions;

- the regulation of the procedural position of the prosecutor of the SRV should be reoriented from the imperative to the dispositive method, which will allow the prosecutor to more freely dispose of the procedural powers belonging to him.

23-32 282
Abstract

The purpose of this scientific research is to study the problem of determining the procedural form of the testimony of the accused in Russian criminal proceedings, considering the existing doctrinal points of view in the theory and provisions of the domestic criminal procedure legislation.

Within the framework of specified goal, the following tasks were solved: an analysis of scientific views on the issue of determining the procedural form of the testimony of the accused in the criminal process was carried out; the characteristics of the procedural form of the testimony of the accused from the point of view of the legality of the source of their receipt are considered; it was established that the procedural form of the testimony of the accused depends, firstly, on compliance with the requirements of the Code of Criminal Procedure of the Russian Federation when the person is recognized as the accused, who is the subject (carrier) of this type of evidence, and, secondly, on the method of securing (fixing, preserving) established by the Code of Criminal Procedure of the Russian Federation testimony received from the accused in the criminal process; the ways of solving the existing problems in determining the procedural form of the testimony of the accused in criminal proceedings are proposed.

In the presented scientific research uses the traditional general (dialectical, formal-logical) and private (legal-dogmatic, interpretation of legal norms, comparative legal, descriptive, interpretive) methods of scientific knowledge, which contributed to the acquisition of new knowledge about the procedural form of the testimony of the accused in criminal proceedings , solving some problems arising in the course of law enforcement in connection with the observance of the requirement of legality of the procedural form of the testimony of the accused in criminal cases.

As a result of the study: the need for a proper universal understanding of the procedural form of the testimony of the accused is stated; the importance of compliance with the requirement of the legality of the procedural form of the testimony of the accused is noted; substantiates the importance of the procedural form from the point of view of the admissibility of the testimony of the accused; analyzes the doctrinal approaches on the correlation of the procedural form with the methods of securing (fixing, preserving) the testimony of the accused provided for in the Criminal Procedure Code of the Russian Federation; the problem of the evidentiary value of the protocols of the interrogation of the accused and the minutes of the court session, in which the information provided by the accused can be recorded, is critically examined.

The following main conclusions are drawn:

1) the procedural form of evidence in criminal proceedings acts as a normative way of securing (fixing, preserving) the content of evidence, its varieties are provided for by the current criminal procedure legislation in part 2 of Art. 74 of the Code of Criminal Procedure of the Russian Federation. The definition of evidence from the point of view of their legal procedural forms must be associated with sources of information, on the basis of which the bodies of criminal proceedings, in the manner determined by the Code of Criminal Procedure of the Russian Federation, establish the presence or absence of circumstances to be proved in criminal proceedings, as well as other circumstances that are important for criminal case. Therefore, the procedural form of the testimony of the accused from the point of view of the legal source of their receipt should be characterized, firstly, by the legality of recognizing the person as the accused, who is the subject (carrier) of this type of evidence, and, secondly, by determining the method of securing (fixing, preserving) evidence obtained from the accused in the criminal process;

2) non-compliance, violation of the requirements for the procedure for drawing up and issuing a decision to prosecute as an accused (Article 171 of the Code of Criminal Procedure of the Russian Federation), will mean the illegality of recognizing such a person as an accused, and, accordingly, entails the exclusion of testimony received from this subject as inadmissible evidence. A similar situation arises in cases where the illegality of either the indictment issued (Art. 225 of the Code of Criminal Procedure of the Russian Federation), or the issued indictment (Art. 226.7 of the Code of Criminal Procedure of the Russian Federation) is established;

3) the procedural form of the testimony of the accused from the point of view of the source of their receipt depends on the observance of the legality of the methods of securing (fixing, preserving) this type of evidence. In this case, it is necessary to solve the problem of the evidentiary value of the protocols of the interrogation of the accused and the minutes of the court session, in which the information provided by the accused can be recorded;

4) since Art. 83 of the Code of Criminal Procedure of the Russian Federation states that protocols of investigative actions and protocols of court sessions are admitted as evidence if they meet the requirements established by the Code of Criminal Procedure of the Russian Federation, insofar as from the content of the said article it can be concluded that the protocols of interrogations should also be classified as evidence in criminal cases. business. This means that in accordance with the current criminal procedure legislation of the Russian Federation, independent evidence is, on the one hand, the testimony obtained during interrogations, and, on the other hand, the interrogation protocols themselves, which may contain testimony. The testimony of the accused is indicated in the minutes of his interrogations or the minutes of the court session, which in turn are written acts fixing the course and results of this investigative (judicial) action. Therefore, the transcripts of the interrogations of the accused, just like the transcripts of the court sessions, containing the testimony of the accused, are the subject of an assessment of admissibility in terms of compliance with the legal procedural form.

33-42 228
Abstract

The main goal of the research is to develop an optimal appeal mechanism as the most important criminal procedural means of ensuring the rule of law in domestic criminal proceedings and protecting the rights and legitimate interests of its participants. To attain this objective, fundamental scientific research of all possible aspects of the appeal is necessary, the most important of which are the the oretical structure, the legislative model and the experience of law enforcement. Within the framework of this goal, the following tasks were formulated and solved: the study of scientific positions, points of view of individual scientists on the essence, meaning, structure, functioning of the appeal mechanism, the basics and details of the legislative regulation of this mechanism in terms of the principles of appeal, determination of the subjects of the right to appeal, the content of this subjective law, ways and means of its implementation, including the form of filing a complaint, contacting persons authorized to consider complaints, etc.

The basis for the study was the hypothesis put forward about the imperfection of the legislative model of appeal, the presence of gaps and the inconsistency of normative legal regulation. The hypothesis, in turn, is based on numerous critical assessments of scientists, addressed both to the appeal in general and to its individual elements.

The research methodology is based on traditional general and particular scientific methods, the totality of which made it possible to obtain new knowledge about the content of criminal procedural appeal, to identify the reasons for the emergence of fundamental and applied problems accompanying the filing of complaints, the grounds and patterns of manifestation of constraint or complete deprivation of certain subjects. criminal procedural relations, the right to appeal, to obtain other scientific knowledge that is significant for the resea rch being carried out.

The results of the study were conclusions based on the author's assessment of the existing in the theory of criminal procedure and the practice of legislative regulation of criminal procedural appeal of the situation, as requiring urgent correction due to many problems that complicate or significantly limit the constitutional rights of participants in criminal proceedings. These problems include: 1) the lack of fundamental rules that can form a modern appeal mechanism that meets the interests of participants in criminal proceedings; 2) the unresolved issue of freedom of appeal and the absence of a real procedural mechanism to ensure the implementation of this rule; 3) theoretical and legal uncertainty in the issue of abuse of the right to appeal; 4) shortcomings in the legal status of the investigator and the interrogating officer as a result of ill -considered deprivation of their right to appeal, etc.

The following main conclusions are drawn:

1. Modern scientific research concerning appeal is mainly aimed at solving the problems of revising judicial and other decisions. Considering that revision is an independent direction of criminal procedural activity, and the appeal is the basis for revision, we believe it is necessary to conduct an independent fundamental comprehensive study of the problems of criminal procedural appeal.

2. Among the most pressing problems of theoretical appeal is the need to form a fundamental basis for appeal, improve the mechanism for its implementation, as well as study the possibilities of optimizing the procedural status of participants in criminal proceedings to exercise the right to appeal.

3. The solution to many law enforcement problems could be a change in the criminal procedural legislation in terms of the development of the institution of appeal, clarification of its procedural forms, including the expansion of methods of filing complaints, for example, orally or by sending an electronic document.

FORENSICS; FORENSIC ACTIVITY; OPERATIONAL-SEARCH ACTIVITY

43-50 177
Abstract

Based on the analysis of the current state of law and order in the penitentiary system, the article analyzes the available approaches to understanding the manifestations of inmates’ illegal behavior in prison. The importance of traditional methods of operational diagnostics and operational identification in obtaining primary information regarding objects of operational interest is stated. Based on the criterion of the object of criminal encroachment and the degree of importance of relations protected by the norms of criminal law, which may be damaged in the event of an offense in prison, they are analyzed and a classification of objects that need operational-regime control over them is proposed.

The possibilities of the distinctive characteristics of the digital environment, innovative methods of modeling and forecasting, which are the basis for the construction of an abstract model of pre-criminal behavior, are investigated. The importance of criminological knowledge in the technology of operational recognition of destructive behavior is emphasized. The definition of the recognition of unlawful behavior of an unidentified person in places of isolation from society is formulated.

51-57 418
Abstract

The number of cases of malicious computer programs in Russia has increased significantly over the past few years. The authors set out to establish the features of the organization and planning of the investigation of crimes of this type and to analyze the investigative activities in order to find ways to further improve the fight against computer crime. The purpose of the study is to determine the most promising areas of organizing and planning the investigation of crimes involving malware. The results of the study are expressed as follows:

1. At the stage of checking a crime report, where there is a high probability of malicious computer programs being used by the perpetrators, the investigator immediately establishes full control over the victim's computer equipment and access to his electronic accounts. The selection of explanations from the applicant, the examination of computer equipment and the appointment of a forensic computer-technical examination in order to establish the fact of infection with malware.

2. The focus of the investigator's actions is based on the promotion and verification of versions about the existence of a crime, the time of its commission, the establishment of harm to the applicant, the classification of malicious computer programs, the mechanism of infection of the victim's software and the methods of harming him. All this information is defined as the circumstances to be established for the initiation of a criminal case.

3. The tactical risks of organizing the investigation are the inability of the expert to classify the program as malicious in the presence of harm, as well as the use of a set of measures to anonymize the perpetrators of their actions, and even the unreliability of the information about the incident reported by the applicant himself.

4. The method of malware infection and the resulting traces depend on the model of interaction with the victim chosen by the criminals. Here you can find both the distribution of the program under the guise of a service, service, complementing other and expanding the capabilities of the computer, and the notification of the victim that the use of the program is illegal, but will bring him benefits from its use. In such cases, the investigator has to deal with organized, secret groups of criminals.

ADMINISTRATIVE LAW; ADMINISTRATIVE PROCESS

58-68 454
Abstract

The aim of the study is to analyze the concept and meaning of the legal consciousness of a civil servant, as one of the factors influencing the effectiveness of the institution of disciplinary responsibility in the system of civil service. The objectives of the research are: determination of the role and place of legal consciousness of a civil servant in the mechanism of legal regulation; identification of essential features and analysis of the functions of legal consciousness of a civil servant; characteristics of the main elements of the content of legal awareness of civil servants; substantiation of the interdependence of the level of legal awareness of civil servants and the state of official delinquency; determination of ways to solve the problem of forming a high level of professional legal consciousness of a civil servant.

The factor influencing the components of the effectiveness of disciplinary responsibility in the system of state-service relations is the legal consciousness of civil servants, which necessitates the identification of its essence and the analysis of the components that make up the content of this complex socio-legal phenomenon. The legal awareness of civil servants predetermines the legality or unlawfulness of their behavior in public-service relations, which affects the indicators of official delinquency. Considering that the legal consciousness of a civil servant refers to professional legal consciousness, the elements of which depend on legal understanding, are in constant development and function at all stages of the mechanism of legal regulation, it is necessary to solve the problems of using personnel technologies that make it possible to identify individual elements of the content of the legal consciousness of a civil servant and, if necessary, in a timely manner. correct.

The goals and objectives of the work determined the research methodology, which is based on both general scientific research methods: dialectical, methods of formal logic, systemic-structural, and private-scientific formal-legal method.

The principal result of this work is the conclusion that the level of legal awareness of a civil servant is an indicator of the legitimacy of his professional service activities. A high level of group legal awareness of civil servants contributes to the provision of general prevention of disciplinary offenses in the public service system, and individual legal awareness - of private prevention.

69-76 210
Abstract

The article examines the administrative-legal and administrative-procedural aspects of state control and supervision activities in the field of health care. The aim of the work is to analyze legislative innovations that reflect a new approach to state control (supervision). The tasks of the work are to consider the features of the legislation regulating state control (supervision) in the field of medical activities, as well as the specifics of the organizational activities of authorized bodies and organizations in the field of control and supervisory medical activities. The work is characterized by the use, along with standard methods of analysis, heuristics and axiology, a statistical method to illustrate the effectiveness of control and supervisory activities.

The results of the work are the conclusion that control and surveillance activities in the context of the COVID-19 coronavirus pandemic should move away from a formal approach due to the fact that massive restrictions on the activities of business entities in their totality cause damage comparable to the damage from the pandemic itself. Therefore, in each specific case, it is necessary to find out what unfavorable consequences in the field of sanitary and epidemiological welfare the identified violations may lead, and not be guided by a formal approach.

Although the statistics of the volume of inspections in the country as a whole has significantly decreased by almost 80%, in the field of sanitary and epidemiological welfare, the volume of inspections does not correlate with the general figures of the dynamics of control and supervision activities. There is an obvious explanation for this, associated with anti-pandemic measures in the country as a whole.

CIVIL PROCEDURE; ARBITRATION PROCESS

77-81 1365
Abstract

At present, at the legislative level in Russia, there is a lack of consistency in the implementation of the judiciary. One of the reasons for this is the underestimation of the scientific concept of judicial law, which is currently the methodological basis for consolidating the branch of judicial law in Russian law.

This scientific article is aimed at substantiating theoretical and legislative proposals for the consolidation of judicial law in the Russian legal system, which will increase the efficiency of justice.

Purpose: On the basis of the concept of judicial law, to investigate the problems of building the branch of judicial law, using an integrative approach in legal thinking, which allows not only to perceive law as an integral phenomenon, but also ensures the achievement of such criteria of scientific research as comprehensiveness, objectivity and historicism.

Methods: In the article the author made an attempt to analyze the branch of judicial law in the context of modern integrative legal thinking from the standpoint of the origin of its ideas and assessment of the current state. In the process of preparing the article, a number of general scientific (dialectical, formal-logical, systems analysis) and special-legal (comparative-legal, formal-legal) research methods were used.

Findings: The result of the study of scientific literature, generalization and comparison of various points of view was the formulation of the author's definition of the branch of judicial law in the context of modern integrative legal thinking.

Judicial law is an integrated, complex, public branch of law, which includes judicial and judicial procedural law for the implementation of the functions of the judiciary in civil, administrative, arbitration and criminal proceedings.

Legal proceedings as an integral part of judicial law are civil, administrative, arbitration and criminal proceedings.

Judicial law as an integral part of judicial law is a set of regulations governing the formation, structure, and competence of the courts of the unified judicial system of the Russian Federation.

КОНФЕРЕНЦИИ, СИМПОЗИУМЫ

ЮБИЛЕИ



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ISSN 2078-5836 (Print)
ISSN 2782-5841 (Online)