Preview

Legal Bulletin of the Kuban State University

Advanced search
No 3 (2022)
View or download the full issue PDF (Russian)

THEORETICAL-HISTORICAL LEGAL SCIENCES

7-17 596
Abstract

The article provides a historical and legal analysis of the conditions and reasons for the appearance of the Manifesto on October 17, 1905, examines not only the constitutional and legal norms of the act, but also the Most Submissive Report of the Secretary of State Count Witte, which, in fact, became not just an accompanying document to the Manifesto , but a conceptual document that defines the ideas of constitutional development and the direction "in which the Government should follow in connection with considerations about the current state of Russia." The main task is to identify the ideological theoretical basis of the Manifesto of October 17, 1905 and the political activities of its author S.Yu. Witte, which will make it possible to determine the significance of this act of the constitutional development of the Russian state through the formulation of the constitutional and legal principles laid down in it, which determine the directions of the state policy of Russia.

As a result of the study, the following results were achieved and the following conclusions were drawn.

The result of the study was the definition of the theoretical basis of the constitutional and legal development of the Russian state in the early twentieth century and the formulation of those constitutional and legal principles that were to determine the main directions of state policy.

The ideological basis of the reform activities of S.Yu. Witte, who became the author of the Manifesto on October 17, 1905, containing constitutional and legal norms, was pragmatism, the essence of which was the emphasis on the practical usefulness of the formulated norms, which were focused on the social, economic and political needs of the individual , society and the state in order to ensure stable state-legal development in the context of maintaining the monarchical regime while spreading capitalist relations, forming a market economy.

The main constitutional and legal principles, which were reflected in the report of S.Yu. Witte and in the Manifesto prepared by him, include the following:

1. The unity of the system of public authority.
2. Priority of the rights and freedoms of a citizen.
3. Formal equality.
4. The people as a support of power, including the power of the Sovereign.
5. Personal inviolability and political rights and freedoms, including electoral ones.
6. People's control over the legality of the activities of power through a representative body – the State Duma.

The real implementation of these constitutional principles, the expansion of the boundaries of representative democracy while maintaining the monarchical form of government created the conditions and the opportunity to ensure a smooth transition of the Russian state to the rails of the new capitalist economy and the balance of interests of various social groups, but only in the context of joint, consistent, purposeful and decisive actions of all bodies. authorities. The key to the cohesion of society, according to S.Yu. Witte, was the unity and cohesion of public authorities based on the interests of the people and taking into account the needs of society, ensuring the security of the state. At the same time, such an important factor as time was noted, which would allow the formation of new habits - civic skills and build a new legal order.

18-27 101
Abstract

The purpose of the article is to analyze L. Tikhomirov's views on state, primarily through the prism of the category of "supreme power", represented by an anti-people autocratic monarchy, subject to revolutionary destruction and the establishment of a people's government in its place. A system of principles and methods, both general scientific and special, is used. In the context of a personalized approach, relying primarily on the method of comparing different views on the problem, we define his position as a statesman and opponent of anarchism.

As a result of the study, a specific understanding of the supreme power was found, reflecting not class, but general social interests, and the people as a whole in relation to the marked power and land. From this, L. Tikhomirov drew the conclusion about a rapid transition to socialist democracy, bypassing the intermediate stage. Such views on state are a call for discussion.

Conclusion. Along with a negative assessment of the functioning model of the state, he generally criticized the theory and practice of bourgeois constitutionalism. Although after the assassination of Tsar Alexander II there was a short period when he put forward general democratic demands – a freely elected Constituent Assembly, political freedoms, amnesty. However, the ideal was a revolutionary socialist state, replacing absolutism. Among the factors of the rapid fall of the autocracy, he called his lack of support in society (the thesis is similar to the ideas of P. Tkachev that the autocracy hangs in the air). The concept of the state is presented to them in general terms. Power passed to the Constituent Assembly democratically elected by all sections of the population, socialist in composition. It had legislative and executive power. The deputies worked on the basis of an imperative mandate. In communal self-government, the principle of direct popular legislation dominated. The slogan of the republic was not proclaimed directly. The task was to build a nationwide unitary state.

PUBLIC LAW (STATE LAW) SCIENCES

28-36 264
Abstract

The aim of the work is to analyze the organizational and legal aspects of the activities of the Ministry of Health of the Russian Federation at the present stage.

Based on the goal set, the objectives of the study include not only an analysis of the problems of implementing the competence of the Ministry of Health of Russia, but also an analysis of the effectiveness of the organizational structure of this federal executive body, taking into account the general principles of efficiency and cost-effectiveness of the functioning of the state apparatus.

It is important to understand that the modern system of public administration in the field of health care is characterized by the fact that the functions of developing state policy and legal regulation in this area are not the monopoly of the Ministry of Health of Russia and, therefore, it is important to determine the limits and subject area of the powers of this ministry in relation to other federal executive authorities endowed with government-public managerial powers in the healthcare sector.

The main conclusion of the article is that the procedure for forming the structure of the Ministry of Health of the Russian Federation is a consequence of a kind of dual subordination of a part of modern federal executive bodies to both the President of the Russian Federation and the Government of the Russian Federation. From here it becomes clear that this ministry will continue, concretize the powers of the President of the Russian Federation and the Government of Russia. Of the 208 (as of 2022) powers of the Ministry of Health of the Russian Federation to adopt regulatory legal acts, only some do not follow from the powers of the President of the Russian Federation, but almost all stem from the powers of the Government of the Russian Federation.

37-43 359
Abstract

The purpose of this study is to form separate directions for improving and developing the content of internal migration of the population as one of the many migration flows, which plays a significant role in achieving the strategic goals of the state migration policy of the Russian Federation: socio-economic, including socio-demographic; ensuring national security; spatial development of the territory of the Russian Federation.

As a result of the study, it was revealed that the current state of administrative and legal regulation of VM needs further development, due to the needs of achieving the goals of the state migration policy of the Russian Federation.

The content of the VM flow needs to be expanded, including permanently residing and staying IG and LBG, as well as forced migrants subject to registration at the place of residence in the territory of the Russian Federation, it is proposed, with the development of information technologies and the formation of a digital profile of a citizen of the Russian Federation and the digital profile of a migrant, to eliminate the migration and legal regime for registering citizens of the Russian Federation at the place of stay in the territory of the Russian Federation and the formation of new permissive migration and legal regimes registration at the place of residence of IG, LBG and forced migrants in the territory of the Russian Federation.

44-49 135
Abstract

The aim of the work is to highlight the little-studied aspects of public law regulation of the procedure for resolving tax disputes in the United States of America in comparison with the system for resolving similar disputes in the Russian Federation. Despite certain differences both in the normative regulation and in the theoretical concepts of protecting the interests of the state and taxpayers, for the Russian science of the administrative process and the science of financial law, there is a very positive experience in resolving tax disputes in the United States, which, with the proper use of rational elements, can relieve the judicial system of the Russian Federation regarding the resolution of tax cases.

The tasks of the work include the following research areas: analysis of the current state of the doctrine, legislation and practice of resolving tax disputes in the United States, taking into account the latest statistical data; comparison of experience in resolving tax disputes in the United States with domestic experience; development of proposals for organizing a quasi-judicial system for resolving tax disputes in Russia.

An attempt is being made to take the experience of quasi-judicial procedures for the purpose of quickly and efficiently resolving tax disputes that are small in terms of amounts. The features of the judicial and extrajudicial procedures of both countries are taken into account in order to understand the potential effectiveness of the practices proposed for borrowing.

The principal conclusion of this study is the idea that the responsibility of the state to taxpayers for harm caused by illegal and unreasonable actions or inaction of the tax authorities should be perceived not in the private law, but in the public law paradigm, despite the fact that in Russia these norms are part of the civil law. In addition, in order to quickly and without prejudice to the quality of resolution of relatively small tax disputes, it is possible to perceive the experience of the quasi-judicial organization of resolving such cases in the United States.

PRIVATE LAW (CIVIL LAW) SCIENCES

50-58 221
Abstract

The purpose of the article is to study the problematic aspects of color trademarks registration. The object of the research is the analysis of the social relations between the registration authority and the entrepreneur about legal protection of designations including color or color combinations, as well as designations that actually consist of one or more colors. The subject of the issue consists in civil legislation and the juridical practice. With that end in view author researches the definition of traditional “color” and non-traditional, in particular, “color trademarks”, the conditions for their protection, the potential possibility of their registration, and the current practice of applying the indicated norms.

As a result of the study, positive and negative aspects of the legal protection of color trademarks were noted. Certain difficulties of law enforcement practice in the implementation of the rules on the registration of non-traditional trademarks are revealed. Some proposals are made to improve the norms on legal protection to color trademarks based on the best practices of foreign legislation and law enforcement practice.

Some conclusions are also made about the fundamental need for research a color trademark according to the "ordinarity" for a specific market segment to ensure a balance of entrepreneurs interests.

Author used popular (dialectical) method of knowledge, methods and techniques of formal logic (analysis, synthesis, induction, derivation, etc.) and special methods of knowledge (including formal-legal, comparative-legal, technical-legal, systemic, empirical etc.).

59-67 194
Abstract

Competition is the driving mechanism of modernity. In the context of global digitalization, competition identifies the emergence of new «information products» due to demand. Demand in a competitive environment generates new offers. In the modern world demand estimation is based on such indicators as the number of search queries in Google and Yandex associated with the digital services and activity of the inhabitants of cities in social networks. The emergence of new digital giants identifies the emergence of new laws regulating digital rights and the behavior of competing entities on digital platforms. Anticompetitive actions on the part of digital market entities entail violation of the rights and legitimate interests of both consumers and digital business entities themselves. This article analyzes anti-competitive actions on digital platforms and identifies ways to develop new legislation aimed at protecting competition.

The fundamental purpose of this study is to study and analysis anti-competitive actions on digital platforms, to identify ways to develop the antimonopoly legislation of the Russian Federation aimed at protecting competition on digital platforms in the context of the global development of the digital economy.

To achieve this goal, it seems necessary to consider domestic and foreign legislation on the protection of competition, the provisions of the doctrine, to analyze judicial practice on the identification of anti-competitive actions on digital platforms in the Russian Federation and a number of foreign countries: Germany, Japan, China, to define the concept and meaning of a digital platform.

To solve the tasks set in the article, a number of research methods are used: logical (description, proof, classification), system-structural analysis, comparative, statistical, which helps to separate the necessary from the random and identify the regularity of processes, sociological method – based on the opinions and assessments of experts, formal-legal.

As a result of the study, it was revealed that in the Russian Federation, the legislation on the protection of competition in relation to digital activities needs innovations. Regulatory acts regulating the protection of competition need to be detailed in terms of the introduction of the terms «digital platform», «digital market», and also add norms regulating the criteria for anticompetitive behavior of economic entities on digital platforms and their types.

Conclusion. Antimonopoly legislation does not restrict competing entities in their actions, but only contributes to the favorable development of the competitive sphere.

68-76 148
Abstract

Objective: on the basis of the constitutional and legal theory of the social state, as well as the prevailing social-oriented doctrines in civil law, to substantiate the concept of socialization of law, proving its practicality, that is, realizability in current judicial and arbitration practice.

Tasks: to determine the constitutional foundations of social statehood and the relevance of their further development, to identify areas of civil studies in the field of social orientation of civil law regulation, to substantiate the concept of socialization of law, to analyze the effectiveness of the implementation of the concept in judicial arbitration practice.

Methods: general scientific – dialectical, analysis, synthesis, historical, formal-logical, inductive and deductive; specifically scientific in the field of jurisprudence – formal-dogmatic, comparative-legal, historical-legal.

Results: the directions of further development of the constitutional foundations of social statehood are highlighted, the main directions of the social orientation of civil law regulation are determined, the concept of socialization of law as a trend of its development is given, the practical implementation of the highlighted trend in judicial arbitration practice is shown.

Conclusions: under the socialization of law, it is proposed to understand the process of enriching its norms with socially significant content and creating an effective mechanism for its impact on regulated public relations in order to create comfortable conditions for civil life for participants. The practicality of the reasoned theory is proved by concrete examples from judicial and arbitration practice.

CRIMINAL LAW SCIENCES

77-86 210
Abstract

The formation of the institution of private prosecution is associated with one of the oldest legal institutions in the criminal process. It is substantiated that this is the established procedure for resolving "criminal disputes" from history. Most peoples have gone from the era of private reprisals against violators of criminal law, to its gradual replacement by a state court. In support of what has been said, the article presents comparative patterns of development of this institution in Russia, Tajikistan and in a number of European countries. The authors indicate the relevance of the functioning of the institution of private prosecution as the most important tool for the implementation of dispositive principles and the observance of democratic values in a state governed by the rule of law.

87-94 140
Abstract

The purpose of the study is to analyze the problems of systematization of normative prescriptions of a special part of criminal law, which has a deep predestination by the main directions of the criminal policy of the country, and according to the logic of feedback can influence the content of the implemented criminal policy. The interrelation of the process of differentiation of criminal responsibility, as a key direction of criminal policy, and the external form of structuring of the special part of criminal law involves the solution of the following tasks: a) the creation within the chapters of the special part of the Criminal Code of the Russian Federation of two departments – on responsibility for crimes and on responsibility for misconduct – in order to differentiate public offenses; b) placement of qualifying features common to a certain group of crimes in a separate article at the beginning of the chapter of the special part in order to ensure the systematic differentiation of criminal responsibility.

95-104 153
Abstract

The constitutional provision on ensuring that everyone receives qualified legal assistance in criminal proceedings is accompanied by the establishment of a set of regulatory rules and requirements, including the rules for the entry of a lawyer into the status of a defender, a representative of the principal. These rules are constantly in the sphere of close attention of scientists. Its reason is the constant variability not so much of federal legislation as of law enforcement practice, which testifies to many cases of both misinterpretation and intentional distortion of legal prescriptions, equally generating erroneous law enforcement, illegal actions against lawyers by investigative and judicial authorities. These cases are an alarming signal of the general situation in criminal proceedings and serve as an obstacle in ensuring the receipt of qualified legal assistance to its participants. The question of the possibilities of implementing subsidiary or double protection is due to the severity of the emerging procedural problems that require the immediate formation of a set of proposals for their resolution.

The purpose of this work is to identify some of the most interesting and relevant, as it seems, aspects of the procedural mechanism of the participation of several defenders.

The achievement of this goal led to the formulation and solution of the following tasks: selection and analysis of scientific sources on the definition, types and consequences of violations of the procedural rights of lawyers to participate in criminal proceedings; search and generalization of judicial and other law enforcement practice on the same issues; analysis of emerging situations in the practical sphere and the allocation of the most significant gaps in criminal procedure and other legislation; development of the author's approach and specific proposals for solving problems related to ensuring the effective participation of a lawyer in criminal proceedings.

The main methods of the research: various types of analysis (system, semantic, functional, etc.), synthesis, generalization, modeling, formal legal, comparative legal. Lawyers, employees of investigative bodies and the Prosecutor's Office took part in the study.

The results of the study were author's proposals aimed at improving law enforcement and methodological recommendations on the interpretation of existing provisions of federal legislation on the solution of ambiguous situations involving the participation of two or more lawyers (by agreement and by appointment), as well as in the presence of a subsidiary defender in accordance with the purpose of the corner court proceedings.

105-112 193
Abstract

The authors of the work analyze the issues of seizure of criminal procedural evidence in the digital age. The main purpose of this study is to focus on the problematic issues of the stated topic, considering the established scientific doctrine and law enforcement activities. Within the framework of this goal, the following tasks were solved: the analysis and generalization of scientific material on issues related to the understanding of the seizure of evidence in criminal proceedings, including electronic media in criminal proceedings, was carried out; the provisions of the current criminal procedure legislation of the Russian Federation that are relevant to the research topic are critically studied; proposals were developed to solve the identified problems related to the seizure of electronic evidence.

The conducted research allowed the authors to state the need to solve the problem of scientifically based understanding and definition of the concept of "seizure of evidence" in the criminal process; problems of legislative definition of electronic media; the importance of proper regulation of the procedural procedure for the seizure of evidence is noted; the points of view existing in science regarding the procedural actions related to the seizure of electronic media and copying information from them are critically assessed. As a result of the study, the authors also developed their own understanding of a number of terms related to electronic evidence.

Methods: dialectical, formal-logical, legal-dogmatic, interpretation of legal norms, descriptive, deduction, generalization.

Results:

1) it is stated that under the seizure of evidence in criminal proceedings it is necessary to understand the action provided for by the Code of Criminal Procedure of the Russian Federation and secured by criminal procedural coercion, carried out by state-authoritative participants in evidentiary activities, by selecting (confiscation) significant for establishing the circumstances of the crime committed and their sources, against the will and desires of others;

2) it is noted that in criminal procedure science there is currently no comprehensive and unified approach to understanding the legal nature of electronic evidence carriers, issues related to seizure, copying and use;

3) it is argued that there is an urgent need for the prompt and high-quality formation of a unified doctrinal approach to electronic evidence in criminal procedural law, including the issues of their withdrawal;

4) it has been established that many norms of the criminal procedural legislation were adopted before the advent of new information technologies, therefore, a systematic improvement of the Code of Criminal Procedure of the Russian Federation is required, considering the introduced modern digital technologies, including in the field of the use of electronic media;

5) it is stated that the dynamics of the development of criminal procedural legislation should be demanded in a qualitative way in the course of law enforcement activities when seizing electronic media and copying information from them.

113-122 225
Abstract

The ineffective activity of law enforcement agencies and the judiciary to neutralize certain criminal phenomena reduces the population's faith in the ability of the state to counteract crime, generating unofficial social mechanisms to eliminate offenses. One such social institution is vigilantism. Therefore, the purpose of this article will be to study the admissibility of using the most well-known and spectacular forms of vigilant behavior in the system of crime prevention in Russia.

To solve the set goal, it seems correct to give a definition of civil vigilantism as tasks, to study how it manifests itself in objective reality, to analyze the possibility of using extrajudicial repressions in social reality.

The goals and objectives of the study determined a methodology based on the philosophical and epistemological aspect, which specified the methods - content analysis, questioning, qualitative and quantitative assessment of the results obtained.

As a result, it was found that the institution of civil vigilantism in Russia is represented by various organizations, and only those that are considered useful for the state anti-criminal policy remain active, regardless of the social harmfulness or danger of the behavior of its participants. Civil vigilantism takes the form of extrajudicial coercion and repression, but this form of behavior appeals to most young people because of its simplicity, theatricality, rituality, and imaginary effectiveness. The use of institutions of civil vigilantism will bring more benefit than harm to the state preventive system, provided that it is used as an auxiliary tool based on the principles of voluntariness, controlled autonomy, and reasonable transformation.

123-131 118
Abstract

The article deals with the problems of providing qualified legal assistance to principals during operational search activities. The impossibility of ensuring the legal participation of a lawyer in carrying out covert operational search activities leads to the use of self-defense and subsequent recourse to a lawyer for assistance in protecting the violated rights of the principal. Among the main ways to assist a lawyer in protecting rights during operational search activities, appeals and reclamation are provided.

The purpose of this study is to substantiate the need for further improvement of the procedure for providing qualified legal assistance to principals during operational investigative measures. Research objectives: conducting a comprehensive study of regulatory legal regulation and the emerging practice of providing qualified legal assistance by a lawyer in the course of operational investigative activities through not only personal participation in public operational investigative activities, but also the use of mechanisms for appealing and reclaiming information in the interests of the principal.

The results of the study were a set of new theoretical provisions that expand scientific ideas about the provision of qualified legal assistance to principals through the participation of a lawyer in public operational search activities. The opinion is also put forward and justified that the improvement of the procedure for providing qualified legal assistance to principals during non-public operational search activities, where the legal participation of a lawyer is objectively impossible, should be carried out using mechanisms for appealing actions and decisions that violate the rights and freedoms of citizens, as well as requesting information in the interests of the principal.



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


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