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Legal Bulletin of the Kuban State University

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No 1 (2022)
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ТЕОРИЯ И ИСТОРИЯ ГОСУДАРСТВА И ПРАВА; ИСТОРИЯ УЧЕНИЙ О ПРАВЕ И ГОСУДАРСТВЕ

7-14 347
Abstract

The purpose of this article is to study the complex of characteristics and classifications of the mechanisms of realization of the principles of the rule of law in modern Russia. In order to achieve this goal, it seems necessary to give a clear definition of these mechanisms as tasks and try to classify them on various grounds, including in relation to modern Russian conditions.
To solve the tasks set in the article, a number of research methods will be used: logical (description, proof, classification), system-structural analysis, comparative.
As a result of the study, it was revealed that for the effective implementation of the principles of the rule of law, it is necessary to form appropriate state and, most importantly, public mechanisms. Such mechanisms should include both the relevant actors represented by State bodies and public associations, and the system of means and tools used.
Conclusion. The complex of mechanisms proposed for the formation should become the subject of more detailed scientific research and a comprehensive and objective assessment in relation to the conditions of functioning of the modern Russian state and the life of modern society. It is necessary to think over the composition of the subjects involved in the operation of such mechanisms, the complex of legal and other means and tools used.

CONSTITUTIONAL LAW; CONSTITUTIONAL LITIGATION; MUNICIPAL LAW

15-21 386
Abstract

The article presents the results of the study of personal security as a complex concept reflecting various aspects of human life and activity. The thesis about the special role of the Constitution of the Russian Federation, the federal law "On Security" and the National Security Strategy in the formation of a public-legal mechanism to ensure the security of the individual is substantiated. Attention is focused on the particular vulnerability of the right to personal security in the new era of digital technologies and on the need to strengthen scientific research, as well as the degree of legislative regulation of elements of the public-legal mechanism for ensuring personal security.

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

22-30 201
Abstract

The development of pediatric organ and tissue transplantation makes it possible to form the necessary conditions for the life of a person and a citizen from the point of view of ensuring legal rights. However, it should be noted that the legislative regulation of this process is significantly lagging behind practice. In these conditions, the convergence of public and private law is designed to ensure the necessary balance of interests, which can be achieved both by establishing mandatory norms and rules by the legislator that require strict compliance within the framework of the implementation of the institute of pediatric organ and tissue transplantation. The article is devoted to the problematic issues of convergence of public and private law in maintaining the balance of interests of society and the state on the issues of pediatric organ and tissue transplantation. Based on a critical assessment of the organizational and legal aspects of pediatric organ and tissue transplantation, the authors propose a number of theoretical and practical measures, including changing the current legislative regulation of the legal relations under study. The purpose of the study is to analyze the problems associated with the legal regulation of pediatric organ and tissue transplantation, taking into account the changing approaches of modern law enforcement practice.

CRIMINAL LAW AND CRIMINOLOGY; PENAL LAW

31-39 1786
Abstract

The introduction of technologies (systems) using artificial intelligence is aimed at creating conditions that improve the quality of life of the population. At the same time, when using these technologies/systems, there are risks of causing harm/damage to various objects of criminal law protection. It is already becoming obvious today that artificial intelligence technologies (systems) can be used as a tool or means of committing a socially dangerous act. The creation of a strong or universal artificial intelligence capable of solving various problems without human participation, leads scientists to speculate about the possibility of recognizing it as an independent subject of a crime.

Objective. To identify the problems of criminal-legal response to socially dangerous acts committed using artificial intelligence technologies (systems). To achieve this goal, tasks have been set related to the design of situations in which harm/damage to objects protected by criminal law is possible when using artificial intelligence technologies (systems); determining the possibility of recognizing artificial intelligence technologies (systems) as a subject of crime and criminal liability.

Methods. The research is based on the universal dialectical method of cognition, as well as a set of general scientific and specific scientific research methods (analysis, synthesis, logical, ascent from the abstract to the concrete, induction, deduction, etc.).

Results. It has been determined that currently technologies (systems) using artificial intelligence are mainly used to commit cybercrimes. Expansion of the sphere of criminal application of these technologies (systems) is predicted. Among the advantages of using these technologies (systems) in the process of committing socially dangerous acts, the possibility of their use in any territory, the physical safety of the subjects using them and the complexity of their detection are distinguished.

It is concluded that artificial intelligence technologies are currently only instruments or means of committing crimes. Subjects of crimes are individuals who design, produce or use technologies (systems) of artificial intelligence to perform the objective side of a socially dangerous act.

40-49 308
Abstract

Purpose and Objectives: The article explores the relationship between morality and criminal law, formulating and describing models of the influence of morality on the criminalization process.

Methods: The article is based on the requirements of comprehensiveness, completeness and objectivity. The main models of the influence of morality on criminal law are described in an overview, based on the classification method. The author also uses comparative legal, empirical and historical methods. The author’s research meets the requirement of interdisciplinarity, as it touches upon philosophical and ethical-legal aspects of the problem.

Results: The authors approved that the moral prohibition is focused on the value-motivational component of the individual’s personality. The criminal law affects the emotional component, producing fear of criminal responsibility.The author concludes that morality does not need criminal law to be sustained, and criminal law does not need to justify morality. There are no clear boundaries between criminal law and morality. Instead, the author suggests that their position should be described in the framework of social norms not by means of Euler circles or drawing borders but by means of layers or "floors". Each of these regulators has its own "problem field". Moreover, morality and criminal law may be overlapped. I’m such case, morality can have a significant impact on the process of criminalization. The author identifies three models of such influence. The first model is inter-normativity. This model describes the natural diffusion of moral and criminal law norms. The second model, legal moralism, describes the enforcement of some moral values by the criminal law. The third model – moral populism – is the appeal to some moral values to promote some solution as universally approved.

CRIMINAL PROCESS

50-58 265
Abstract

The relevance of the study of validity is due to the significance of this category for criminal procedure science and practical law enforcement. Reasonableness is a category that causes a lively discussion in the scientific community, which encourages us to look for modern means of establishing the necessary circumstances for making a procedural decision, as well as to develop more effective procedures for verifying and evaluating incoming information. Reasonableness is also one of the areas of concern for law enforcement. Thus, the cancellation or modification of court decisions, as well as decisions of investigators and investigators, for the most part occurs precisely because of their lack of validity. The reason for scientific discussions and practical questions is seen in the lack of knowledge of this category, too straightforward approaches to its assessment. We believe that the continuation of the research will allow us to find more successful solutions in terms of legislative regulation of reasonableness as a requirement for procedural decisions, as well as to gain new scientific knowledge that expands the understanding of the potential of reasonableness in criminal proceedings.

The goal is to form a new approach to determining the validity of procedural decisions, based on differentiation and different standards applied to different types of procedural decisions.

The objectives of the study were to study the features of procedural decisions, the grounds for their adoption, to clarify the differences and their causes in the degree of reliability of the conclusions recorded in the procedural decision, the feasibility of maintaining a unified approach to the validity as a single and unchangeable feature of any procedural decision; analysis and generalization of scientific points of view; the study of criminal procedure legislation, in terms of regulating the presentation of requirements for procedural decisions and the assessment of their consistency, the formation of their own position on these issues, the presentation of author's proposals.

Methods: dialectical, analytical, comparative, concretization, formalization, modeling, deduction, generalization.

Results:

1) three standards of validity of procedural decisions are proposed:

– general procedural;

– lowered;

– elevated.

2) the criteria for determining the applicable standard for process decisions are:

– directly aimed at implementing the purpose of the criminal process;

– contributing to the execution of the appointment of criminal proceedings.

3) classification of procedural decisions based on the specified standards.

Decisions with a reduced standard of reasonableness include decisions of the investigator, the inquirer and the judge on the conduct of an investigative action.

Decisions with a general procedural standard of reasonableness include decisions that are binding, but do not have a preliminary character, which can be based on both evidence and other information that gives rise to a firm belief in the need to make this particular decision in order to maintain the balance of probability that the event described in the decision with a high degree of probability can occur. Such decisions are made, for example, when choosing a preventive measure [10].

Decisions with an increased standard of reasonableness should include those decisions that are binding, have a pre-judicial significance, and are made only on the basis of acceptable evidence that excludes the possibility of making any other decision other than this one. In this case, the degree of validity of the decision should be so high as to be beyond reasonable doubt, excluding gaps in both the law and the system of evidence.

4) ways to improve the evidentiary activities of the court, preliminary investigation bodies and participants in criminal proceedings, aimed at removing certain restrictions on the use of various categories of information (for example, those that do not have the form of procedural evidence) to substantiate the conclusions contained in the procedural decision. The same direction makes it easier for the parties to provide information that can be used by the authorities to make a procedural decision.

59-68 390
Abstract

Jury trial is traditionally one of the topics that constantly attract the attention of scientists. Despite the fact that a lot of research has been carried out, significant results have been obtained in terms of solving numerous problems, there are still not isolated issues that occupy scientists and practitioners. It should be noted that to date, the fundamental problems have not been solved, for example, the conceptual apparatus, the principles of criminal proceedings and their implementation in the conditions of a jury trial, the social and legal assessment of the results of the jury trial, and others. The purpose of this study is to demonstrate the incompleteness and the urgent need to continue fundamental research, as well as to offer the scientific community author's conclusions and conclusions on a number of conceptual issues. The research objectives are related to this goal and included: the study of the theoretical foundations of the jury trial, its history, legislative and other normative legal acts; identification of gaps in the conceptual apparatus and the development of approaches to their elimination; the study of scientific papers on the principles of criminal justice; compilation of a review of scientific literature on fundamental issues of jury trial; study of the results of related scientific research (sociology, economics, psychology, IT technologies, etc.).

The study was conducted using a set of methods, including theoretical, empirical and combined methods of obtaining, processing and evaluating the information received (dialectical, analysis, generalization, logical, system-structural, formal-legal, comparative-legal, linguistic-legal). Various types of interpretation of criminal procedural norms were also applied: literal, restrictive, distributive, etc.

As a result of the conducted research, author's conclusions, conclusions were formulated and some problematic judgments of a theoretical and law-enforcement nature were formulated: the definition of a jury trial was presented; the legal status of some ideas underlying the organization and functioning of a jury trial (justice, publicity, collegiality) was specified; promising scientific directions for the continuation of jury trials were identified; in particular, the mechanism of ensuring the independence of jurors in the domestic criminal procedure law.

Some conclusions served as the basis for proposals to improve the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), in particular Article 5 (basic concepts), as well as Article 8.1.

69-75 270
Abstract

In modern conditions, under the influence of the rapid development of information technologies, the previously established paradigm of relations between the court and civil society is significantly changing. Transparency and publicity of legal proceedings have been proclaimed one of the goals of the information policy of the Russian judicial system for 2020–2030. Therefore, there is a need for a scientific study of information openness and publicity in criminal proceedings, especially considering the problems that have arisen due to the adverse impact of the global pandemic.

The purpose of this study is to distinguish between the concept and signs of information openness and publicity of criminal proceedings.

During the research, dialectical, formal-logical, and other general scientific research methods were used; special legal methods: formal legal, comparative legal, etc.

In the course of the study, it was concluded that the publicity of legal proceedings is the ability of any person not participating in the case to actually or virtually be present in the hall where an open court session is held, and information openness in the activities of the courts – as a range of legal and communication tools intended for society as a whole and public control over judicial activity. In addition, publicity as a general condition for trial in criminal proceedings is a judicial constitutional principle of the criminal process, and information openness of legal proceedings is a judicial principle, which consists in providing access to information about the activities of the courts, which contributes to the realization of everyone's right to access to information. The constitutional principle of publicity, as a law of direct action, fully applies to trials in criminal proceedings

76-85 183
Abstract

The main purpose of the research is to develop an optimal mechanism of appeal as the most important criminal procedural means of ensuring legality in pre-trial criminal proceedings and protecting the rights and legitimate interests of its participants and other persons involved in the relevant legal relations. Within the framework of this goal, specific tasks were expressed and resolved: the study of international and domestic legal bases for regulating appeals in criminal proceedings, scientific doctrine, views of individual scientists on the problems of the concept, content and mechanism of appeal in pre-trial proceedings, the functioning of this mechanism in terms of the implementation of the principles of appeal, the internal content of this subjective right, ways and means of its implementation, including procedural rules for filing a complaint, appeals to officials and bodies authorized to consider complaints, demanding knowledge of actions (inaction ) and decisions illegal in order to protect the rights and legitimate interests.

Important for the study was the hypothesis about the imperfection of the legislative model of the right to appeal in pre-trial proceedings in general and its individual aspects, the presence of shortcomings of regulatory legal regulation, as evidenced by negative assessments of scientists and practitioners.

ADMINISTRATIVE LAW; ADMINISTRATIVE PROCESS

86-92 186
Abstract

The aim of the work is to study the phenomenon, the meaning of which determines the essence of administrative procedural legal relations, namely, the content of administrative procedural legal relations based on the ideas of the general theory of law on the content of legal relations, taking into account the peculiarities of the sectoral orientation of the norms of administrative procedural and substantive administrative law. Accordingly, the tasks of the work are: determination of the nature of procedural law and procedural obligations in the administrative process, their types and relationships in relation to the characteristics of the participants in the administrative process.

The goals and objectives of the work determined the research methodology, which is based on general philosophical heuristic methods, as well as the method of comparative analysis, system-structural method.

The principal result of this work is the idea that the model of the relationship between the rights and obligations of the parties in the administrative procedural legal relationship can be multivariate. The duty of the subject opposing him in the process does not always correspond to the procedural law of a person. In addition, the absence of a procedural obligation does not deprive a person of his procedural right. The composition and balance of specific procedural rights and obligations in the administrative process depends on the type of proceedings, the nature of participation in the case and the nature of the right and obligation itself. Taking into account the fact that the judicial administrative process is built according to the classical paradigm of jurisdictional proceedings, part of the rights and obligations in the process arise before the court, and not before the opposing procedural subject.



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