Preview

Legal Bulletin of the Kuban State University

Advanced search
No 4 (2021)
View or download the full issue PDF (Russian)

CONSTITUTIONAL LAW; CONSTITUTIONAL LITIGATION; MUNICIPAL LAW

7-15 246
Abstract

Human rights activity is a special direction in the field of public law research. With the adoption of the Constitution of the Russian Federation, human rights activities have acquired a solid legal basis in the form of separate provisions that serve as principles in specific areas and areas of protection of civil and other rights. At the present stage, taking into account the development and significant modernization of many aspects of legal activity, especially in the light of the existing problems associated with the unfavorable epidemiological situation, it has become necessary to pose new tasks to science, the solution of which is necessary to increase the level of legal protection of citizens.
The purpose of the study is to develop the constitutional foundations of human rights activities in the aspect of organizing free legal aid in a pandemic. Research objectives: conducting a comprehensive study of the constitutional provisions defining the principles of human rights activities; adaptation of sectoral legislation regarding the organization of free legal aid to the conditions of the pandemic; identification of promising areas for further improvement of the rules and conditions for providing such assistance; development and justification of author's proposals to change the categories of citizens using free legal aid and the list of issues within which such assistance should be provided.
The conducted research is based on traditional general scientific and private scientific methods, including dialectics, analysis, synthesis, generalization, logical, system-structural, system-functional, comparative legal, formal legal, etc.
The results of the study were a set of new provisions that expand scientific ideas about the constitutional foundations of human rights activities and the specifics of their implementation in a pandemic.
The opinion is put forward and justified on the need to expand the list of categories of citizens entitled to receive free legal aid, as well as on the expediency of changing the range of legal issues in connection with which legal aid should be provided free of charge.

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

16-28 301
Abstract

The stability of the country's economy in general and civil property turnover in particular depends, among other things, on the economic viability of each of its participants. There are often situations in which the economic stability of participants in civil turnover decreases and they, as well as their counterparties, need appropriate protection. The Institute of bankruptcy is designed to ensure a balance of interests of civil turnover participants with financial difficulties and their counterparties – creditors. Such a balance can be achieved both by establishing mandatory norms and rules by the legislator that require strict compliance, and by providing participants with a certain freedom when they exercise their legal personality within the framework of the bankruptcy procedure. The article is devoted to problematic issues of law enforcement practice of the Supreme Court of the Russian Federation, dedicated to the institution of collateral as the most popular way to ensure the fulfillment of obligations. The authors study the changed vector of law enforcement practice of arbitration courts of the judicial system of Russia to the institution of collateral without changing the current legislative regulation of the legal relations under study. The authors analyzed and critically evaluated the new approach of the Supreme Court of the Russian Federation to the issues of the institution of collateral in bankruptcy cases.
The purpose of the study is to analyze the materials of the judicial practice of the Supreme Court of the Russian Federation with the identification of new approaches to collateral as a way to ensure the fulfillment of obligations and the possible consequences of the relevant conclusions of the supreme court for the entire institution of bankruptcy as a whole.
Methods. In preparing this study, the authors used general scientific and private scientific methods of cognition, including: analysis, comparative legal and formal dogmatic methods.

29-37 453
Abstract

The purpose of this article is to study the legal regulation of the legal status of a new object of rights for Russian legislation-unmanned aerial vehicles. To achieve this goal, such tasks are set as analyzing the content of the concept of "unmanned aerial vehicle" and its differentiation from the terms "drone", "quadrocopter"; considering the problems of legal regulation of the procedure for state registration of unmanned aerial vehicles in Russia; research of foreign experience and practice of legal regulation of the operation of unmanned aerial vehicles. The article uses modern methods of scientific cognition, such as general scientific and private scientific research methods, which together allowed us to characterize the legal status of unmanned aerial vehicles and identify legal problems of the operation of these objects on the Russian territory.
The novelty of the study is determined by the novelty of the object of rights itself – unmanned aerial vehicles, which for the first time received legislative recognition in Russia. The results of the study include the formulation of scientific and practical proposals for improving the regulatory and legal regulation of the operation of unmanned aerial vehicles in Russia, taking into account the established legal practice in foreign countries.
The study is accompanied by conclusions arising from the analysis of the legislative regulation of the use of unmanned aerial vehicles as objects of rights. Proposals are formulated on the expediency of reducing the mass of unmanned aerial vehicles that are subject to accounting and registration (below 30 kilograms), since this can reduce the risk of serious injuries if they lose control; it is proposed to introduce insurance for commercial filming (following the example of the UK), but insurance should not adversely affect the activities and income of the population; a proposal has been developed to maintain a separate website that will be devoted to the legal regulation of flights of unmanned aerial vehicles, aimed at increasing the level of legal awareness on the part of the population, as well as to register and register vehicles through this portal, for example, as in France; it is proposed to introduce a ban on the flights of unmanned aerial vehicles not only over places where public events and official sports competitions are held, but also over the places of residence of ordinary citizens (except in cases when the unmanned aerial vehicle belongs to a citizen, and the shooting is carried out exclusively over his territory). Such changes should be made to paragraph 52.1 of the Federal Rules for the Use of the Airspace of the Russian Federation

38-45 164
Abstract

The transition to the standards of the «green» economy implies economic growth while reducing poverty, social integration and human welfare, as well as improving the condition of all ecosystems of the planet. These goals completely coincide with the goals of ecotourism as a type of entrepreneurial activity. How-ever, the development of ecological tourism in Russia requires the improvement of the regulatory framework, both at the federal and regional levels, which will strengthen environmental safety guarantees, create an incentive for the development of entrepreneurial activity, increase the tax base in the country and regions, and lead to the creation of new jobs. In this regard, it seems appropriate to develop a draft Federal law «On ecological tourism in the Russian Federation», the adoption of which will create incentives and procedures for the development of ecological tourism in many regions and the Russian Federation as a whole. This will require amendments to the Federal Law «On Environmental Protection», its addition with a special article on the specifics of ecotourism activities, its environmental restrictions, as well as amendments to the Federal Law «On Specially Protected Natural Territories» dated March 14, 1995 №. 33-FZ. The above-mentioned draft laws should contain economic incentives for the development of ecotourism, a list of powers of state authorities of the Russian Federation and its subjects, local selfgovernment bodies in the field of the development of ecological tourism, provide for the procedure for maintaining a register of tour operators providing this type of services, allowing to claim tax and other benefits.

CRIMINAL LAW AND CRIMINOLOGY; PENAL LAW

46-54 229
Abstract

The actual goal of modern science is the intellectual support of the processes of ensuring the consistency of criminal law and legislation. To achieve this goal, it is necessary to solve problems related to the consideration of approaches to determining the content of criminal law institutions, identifying the form of their expression and scope. Within the framework of the conducted scientific research, the following conclusions were made:
– The content of the institutions of the special part of criminal law can be adequately disclosed, provided that a pluralistic approach to understanding law as such is followed; if the genesis and social purpose of a legal institution is explained on the basis of the advantages of an institutional approach, and its social content and real action are explained within the framework of a sociological interpretation of criminal law, then a positivist approach to law retains its possibilities for studying the legal content of the institution of the special part and its isolation from its social content;
– Since the institution of law is an element of the legal system, it cannot differ in content from the system as a whole: the uniformity of all elements of law ensures its consistency and integrity. From the point of view of legal positivism, the institution of a special part of criminal law includes in its content only what is included in the content of law as such, namely normative legal prescriptions and principles;
– Normative prescriptions of different content that form the institution of a special part of criminal law can be objectified in different legal sources of the branch of criminal law. Prescriptions that formulate the basis of criminal liability and the model of sanction can be provided only and exclusively in the federal criminal law, while prescriptions of a definitive nature, conflict of laws and operational may well be consolidated at the level of other sources of criminal law;
– The sphere of institutions of a special part of criminal law may cover the provisions of criminal and administrative-tort legislation, as related to a single "criminal sphere".

55-63 239
Abstract

This article explores existing approaches to the issue of applying artificial intelligence to evidence collection and analysis. Problems associated with the definition of the limit and requirements for the use of artificial intelligence systems in the work of investigation with the evidence are solved. The methodological principles of their systematization and classification for determining the prospects of application of artificial intelligence for the collection and analysis of evidence are revealed.
Methods: The work is based on the requirements and principles of system analysis, namely: objectivity, comprehensiveness, completeness of the study. The main method of research is classification, which assumes the coverage of all objects of the classification division and the justification of objective grounds for their gradation into types.
Results: The general requirements for the use of artificial intelligence technology to make decisions that significantly affect people's lives are noted as a starting point. The differences in the necessary requirements for systems to collect and analyse evidence have been proven. It is recognised that one of the key challenges remains the transparency of intelligent decisions and recommendations. This is particularly the case with deep neural network machine learning solutions. Machine learning models are often very complex and therefore not directly verifiable by humans. In order to understand and make them transparent, special tools for interpreting and analysing results must be provided. The authors point out in particular that the results of opaque artificial intelligence systems must be used with great care in gathering and analysing evidence, as the system is not as predictable as traditional computer programs.

64-71 153
Abstract

The article is devoted to an urgent problem – the analysis of extremist and terrorist manifestations in the field of education. Unfortunately, modern reality shows that the field of education remains extremely unprotected from various kinds of criminal threats, of paramount importance among which are the threats of terrorism and extremism. First of all, the author draws attention to two categories of citizens who are the main participants in educational relations: on the one hand, these are pedagogical and other workers in the field of education, and on the other – students. Judicial practice shows that both educational workers and students can become subjects of extremist and terrorist crimes. In substantiation of this thesis, the author analyzes and cites current judicial practice in this study.
Objective: based on official statistical data and previously conducted scientific research, to consider extremism and terrorism in the educational environment as an urgent threat to the criminological security of the education system.
Methods: the methodological basis of the research is expressed in the general dialectical method of scientific cognition, characterized by its universality. The research also uses methods of logical deduction, induction, cognitive methods, comparison, analysis, generalization and description.
Conclusions: having analyzed judicial and departmental criminal statistics reflecting the current state of extremist and terrorist crime in the educational environment, the author concludes that such types of crime, despite the preventive measures taken by the subjects of prevention, are still present in the education system. The author emphasizes that the fight against such phenomena is based, first of all, on timely and effective prevention. At the present stage of society's development, the goal of the state should not be to seek to bring as many citizens as possible to criminal responsibility for terrorism and extremism, but to form anti-extremist attitudes in society, to form an anti-terrorist ideology, including in the educational environment.

CRIMINAL PROCESS

72-81 161
Abstract

Modern criminal proceedings are unthinkable without the provision of qualified legal assistance. This assistance is in demand practically by all participants whose interests are affected by this production in one way or another. The effectiveness and efficiency of the provision of qualified legal assistance is ensured, along with other means, by the stability of the procedural position of the lawyer performing the function of defender, representative, lawyer of the person whose premises are being searched, in a different status. Stability means the immutability and invulnerability of his procedural status from the point of view of obstructing his legitimate activities. And the means of ensuring stability are rules that allow timely elimination of created or emerging obstacles to the implementation of legitimate advocacy. Among such rules, the procedure and conditions for admission to criminal proceedings of persons capable of eliminating or effectively influencing the obstacles that arise in the exercise of legal advocacy and to establish the provision of legal assistance at a high professional level should be provided. The purpose of this study is to develop a criminal procedure mechanism for the access of a representative of the Bar Chamber to criminal proceedings in cases defined in art. 450.1 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), as an independent participant whose procedural position is determined by the need to ensure the provision of qualified legal assistance by lawyers.
Tasks to be solved: the study of modern conditions for the provision of qualified legal assistance; the study of means and methods of the legal activity of a lawyer; clarification of scientific trends on the interpretation of the conditions for the provision of qualified legal assistance, the legality of advocacy; analysis and generalization of the trends of practical criminal procedural activities related to the interaction of lawyers with the preliminary investigation bodies and the court; substantiation of the need for legal regulation of the admission of a representative of the bar chamber to criminal proceedings and determination of his procedural status; search and proposal for the legal model of such a mechanism.
The study was conducted on the basis of a set of general, general scientific and private-legal methods of cognition, including theoretical (dialectics, various types of analysis, synthesis, generalization, logical, system-structural, modeling, formal-legal, comparative-legal), as well as empirical (monitoring, criteria for evaluating the performance of representatives of Chambers of Advocates of various regions of the Russian Federation; statistical) methods.
The study led to the following results: theoretically, the need for the participation of a representative of the Bar Chamber as an independent subject of criminal procedural relations and granting him a procedural status sufficient to fulfill his mission was proved; an approach to solving problems accompanying the admission of a representative of the Bar Chamber to criminal proceedings was determined in cases specified in art. 450.1 of the Code of Criminal Procedure of the Russian Federation, a set of rules has been developed and proposed to ensure the admission of a representative of the Advisory Chamber as a participant in criminal proceedings in its pre-trial stages.
The theoretical results became the basis for the formation of a set of proposals for improving legislation (in particular, the Criminal Procedure Code of the Russian Federation, the Federal Law "On Advocacy and Advocacy in the Russian Federation").

ADMINISTRATIVE LAW; ADMINISTRATIVE PROCESS

82-88 164
Abstract

The aim of this work is to review the problems of little-studied phenomena in the theory of administrative law, namely, the problems of administrative and legal regulation of biotechnological activities.
Accordingly, the tasks of the work are the following blocks of problems: issues of administrative legal personality in connection with the development of biotechnology; state control and supervision in the field of biotechnology; administrative responsibility for violation of legislation in the field of biotechnology. Due to the fact that the development of biotechnologies in the world is uneven, and the exchange of information is carried out (albeit with certain national restrictions), biotechnologies are exported, one of the main research methods was the method of comparative comparative studies along with general philosophical heuristic methods. In addition, the research methodology is based on a combination of comparative analysis of legal concepts with natural science phenomena.
The principal result of this work is the idea that modern biotechnological development in the medium term will lead to a change in views at the time of the emergence of legal personality, the recognition of its individual elements as subjects that have arisen in the modern sense. The legislator and the law enforcement officer are faced with the question of the rights of a surrogate mother to decide at their own discretion the issue of performing an abortion, regardless of the interests of the customer, as well as what methods are used by state bodies to publicly protect this kind of "half-subjects" (or developing subjects, special subjective phenomena sui generis). At the same time, we are aware that administrative legal capacity is not the rights and obligations in the field of public administration themselves, but the potential (abstract) ability to have them, that is, a certain ability for administrative legal ownership.

Consequently, at this level of comprehension, there is no need to talk about the specific rights of the disputed categories of subjects in the field of public administration, although the very right to life and health protection imply, among other things, an administrative and legal mechanism for its provision.

CIVIL PROCEDURE; ARBITRATION PROCESS

89-97 412
Abstract

The article deals with the problem of establishing common knowledge facts in the process of judicial proof, as circumstances that precluded the need for their proof. The relevance of the study is since the legal and doctrinal interpretation of the concept of "common knowledge facts" in Russian law has not changed for a long period of time. At the same time, the sources from which the court can obtain information about common knowledge circumstances have changed significantly, considering the processes of global informatization of public relations. The author of the study is to clarify the role played by common knowledge facts in modern arbitration litigation in Russia, considering the possibility of courts using publicly available sources of information in the process of proof.
In the article, the author analyzes the judicial practice of district arbitration courts on the issue of establishing common knowledge facts and refers to the research of American legal scholars in the field of application of the doctrine of judicial notice, which is also related to the establishment of facts by courts that are not subject to proof because of their common knowledge. In addition, the article describes the data and the result of an experiment conducted as part of the study of the 4th year students of the Faculty of Law of Kuban State University (training level: bachelor's degree) of the discipline "Arbitration process", regarding the use of modern information sources to establish common knowledge facts in the judicial process.
As a result of the conducted research, it was found that arbitration courts establish as circumstances that are not subject to proof not only facts that have the properties of "common knowledge", but also facts about which information can be obtained from publicly available sources, for example, from publications in the media and the Internet. In this regard, the role of common knowledge facts in the modern arbitration process has acquired a different, more ambitious significance. The analysis of foreign scientific literature in the field of application of the doctrine of judicial notice has shown, in general, a positive attitude to the use of information from publicly available sources, including the Internet, as facts that are not subject to proof.
Based on the results of the study, the author comes to the need to reflect the trends of judicial practice at the legislative level and proposes to amend part 1 of article 69 of the Arbitration Procedural Code of the Russian Federation, stating it in the following wording: "The circumstances of the case recognized by the arbitration court as common knowledge, including those published in publicly available sources of information, do not need to be proved".



Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 License.


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