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Legal Bulletin of the Kuban State University

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No 4 (2022)
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PUBLIC LAW (STATE LAW) SCIENCES

7-13 271
Abstract

The purpose of this study is to study the licensing procedure of insurance activities, to identify its features and problems of legal regulation that require resolution.
The author revealed that among legal scholars there is no single approach to the definition of the concept of "license", scientists criticize the position of the legislator, who reveals the content of the designated concept through the concept of "permission", since these terms are synonymous with each other, or rather one is a form of expression of the other. In addition, it is established that the licensing procedure is represented by a set of actions that must be performed by the license applicant and the insurance supervision authority represented by the Bank of Russia, whose powers include the issuance of licenses for insurance activities. To obtain a license, the applicant must submit to the insurance supervision authority a certain list of documents, among which the author draws attention to a document containing information about some officials of the future insurance company. Thus, the author believes that the head of an insurance company should be required to have a higher legal, economic or financial education, and the absence in the legislation today of an indication of a specific type of education that the head should have is incorrect. The author also suggests, in connection with the difficult situation in the world, to postpone the terms of increasing the authorized capital of insurance organizations to a later date in view of the impossibility in the current conditions of attracting the inflow of foreign investment into the economy of our country.
The novelty of the presented scientific research is determined by the fact that the shortcomings of the legal regulation of the institute for licensing insurance activities have been identified, which have not yet been presented in any scientific research, and ways to solve them have been proposed. 

14-22 175
Abstract

The article presents the author's position on modern amendments to the Constitution of the Russian Federation, the directions of their implementation in the course of ongoing transformations, taking into account approaches to legal under-standing, legal education, law enforcement. The features of the introduction of constitutional novelties into the public legal space, their conditionality by modern events, the motivation of scientific approaches to their assessment are shown. The vectors of further implementation of the adopted and projected innovations are determined, proposals for constitutional transformation in scientific and legal aspects are formulated.
The objectives of the study are defined in the context of the analysis of proposals for further improvement of the Constitution, constitutional norms and mechanisms of their application and on its basis the development of new directions.
The research was carried out on the basis of methods of formal dogmatic, historical, comparative legal, system-functional, formal legal, as well as synthesis, analysis, generalization.
The results of the study were recommendations on the directions and content of further constitutional reforms in the key of: constitutional legal understanding; public law regulation in the sphere of power relations, stated in the novels; qualified application of constitutional terminology in the implementation of constitutional institutions.

23-33 121
Abstract

The aim of the work is to analyze the problems of applying administrative restraint measures in the field of public health protection in the Russian Federation.
Based on the goal set, the objectives of the study include not only the analysis of the problems of implementing narrowly focused preventive measures, such as delivery to a medical sobering-up station, but also the analysis of measures that carry a dual target load, acting both as preventive and as interim measures of administrative coercion.
The modern system of measures of administrative coercion in the field of health protection is characterized by the fact that these functions are implemented not only by law enforcement, but also by any control and supervisory authorities that have the appropriate competence in the framework of state and municipal control and supervisory activities.
The fundamental conclusion of the article is that the whole variety of administrative preventive measures in the field of health protection is, firstly, closely related to the prevention of a threat to the life of a person, as well as damage that is caused to objects that ensure the normal life of a person - ecology, drinking water, food, sanitary - hygienic living conditions. Emphasizes the "dual", "paired" nature of some preventive measures in their relationship with preventive, provisional and punitive measures of administrative coercion.

34-39 232
Abstract

The purpose of the presented study is to analyze the current state of federal state control (supervision) in the field of migration in the context of the modern reform of state control (supervision) in the Russian Federation and an at-tempt to legislatively form this type of control and supervisory activities in the field of migration in the draft Federal Law "On the conditions of entry (exit) and stay (residence) in the Russian Federation of foreign citizens and stateless persons". As a result of the study, it was revealed that the modern federal state control (supervision) in the field of migration concerns only external, external labor immigration and does not systematically affect all existing types of migration flows, namely in-ternal migration, external migration, external labor, educational and forced migration of the population, which does not allow to effectively implement the goals of the state migration policy and combat illegal migration in the Russian Federation. Conclusion: a systematic administrative and legal regulation of administrative supervision in the field of migration as a type of state control and supervisory activity, a system of the subject of this supervision, which can be implemented only within the framework of the systemic codification of Russian migration legislation, is proposed.

40-45 210
Abstract

The purpose of the study is to analyze the information openness and transparency of administrative proceedings at the present stage. Proceeding from the fact that openness and transparency of legal proceedings are proclaimed as one of the goals of the information policy of the judicial system of Russia for 2020–2030, there is a need for scientific research of information openness and transparency in administrative proceedings.
Taking into account the fact that according to paragraph 5 of Article 6 of the CAS of the Russian Federation, transparency and openness of judicial proceedings are the principles of administrative proceedings, according to the results of the study, the concept of transparency and information openness of administrative proceedings is proposed.
The main conclusion of the article is that the transparency of administrative proceedings is a judicial constitutional principle of administrative judicial process, which represents the possibility of any person not participating in administrative judicial proceedings to actually or virtually be present in the courtroom where a specific administrative case is being considered.
In contrast, the information openness of administrative proceedings is a judicial principle, which consists in providing access to information about the activities of courts in administrative proceedings, contributing to the realization of the constitutional right of everyone to access information (paragraph 4 of Article 29 of the Constitution of the Russian Federation).

46-51 391
Abstract

The purpose of the presented scientific research is to analyze the specific properties (signs) of administrative discretion as a type of law enforcement discretion, its difference from the discretion of the judicial (judicial).
As a result of the study, specific signs of administrative discretion were revealed. It is noted that such features are such properties as the implementation of discretion exclusively by the authorized executive body; compliance of the discretion with the legality, expediency and motivation of the management decision; is implemented within the framework of a public legal relationship; is based on the specifics of the method of legal regulation of public legal relations; the peculiarity of the management activity of civil servants; is characterized by the possibility of its expansion.
Conclusion: the formulated views on the features of administrative discretion as a type of law enforcement discretion will allow to concentrate the attention of law-making and law enforcement bodies in the formation and implementation of discretion when making a management decision on an individually specific administrative case.

CRIMINAL LAW SCIENCES

52-62 139
Abstract

The tasks of the economic stability of the state and its economic security are constantly relevant. The search for their solutions takes place in all areas, from the development of concepts and the creation of policy documents for the development of macroeconomics and ending with the implementation of private activities of any economic entity. Of particular importance in this area is the legal basis of entrepreneurship and the protection of business interests.
In criminal proceedings, the problems of ensuring the rights of entrepreneurs are caused by many factors. Among them is the legal uncertainty in the regulation of the involvement and participation of entrepreneurs in investigative and other procedural actions, the procedure of investigative and other procedural actions against entrepreneurs, etc. Such a procedural action as the seizure of objects, documents and other objects related to the activities of entrepreneurs attracts attention. Considering that the procedure of seizure in the criminal procedure Law is provided for in a very peculiar way, and the results of seizure can completely paralyze the work of economic entities, then the definition of the procedure for its conduct in criminal proceedings should be given particularly close attention.
This article suggests the author's approach to solving this problem.

63-73 180
Abstract

The article substantiates the author's approach according to which the use of the results of operational investigative measures should be understood as the use of these results by the investigator as: 1) the reason and (or) the grounds for initiating a criminal case; 2) the actual basis for the production of investigative actions and the use of coercive measures; 3) the basis for the search and ensuring the personal safety of participants in criminal proceedings and other persons; 4) the basis for the formation of evidence. It is stated that a prerequisite for the use of the results of operational investigative measures in pre-trial proceedings after their submission to the investigator in accordance with the established procedure is the requirement to ensure the rights of the individual through the application of procedures for the statement of proceedings, complaints, participation in procedural actions and familiarization with the materials of the criminal case.
The purpose of this study is to gain new knowledge on ensuring the rights of participants in pre-trial proceedings when using the results of operational investigative measures by the investigator. The results of the study were a set of new provisions that expand scientific ideas on ensuring the rights of participants in pre-trial proceedings when using the results of operational investigative measures. The author's position is substantiated that the procedural means of ensuring the rights of the individual when using the results of operational investigative measures by the investigator are the procedures for filing petitions, complaints, the right to participate in procedural actions and familiarization with the materials of the criminal case formed on the basis of the specified results.

74-81 146
Abstract

The rapid development of legislation related to the peaceful settlement of criminal law disputes creates the need to create a scientific basis for legal construction in this direction. To date, several basic models of conciliatory criminal procedure procedures have been identified. Firstly, this is a mediation model, which involves the participation of an official or unofficial mediator in achieving reconciliation between the victim and the accused, as well as the development of other conditions for the termination of criminal prosecution. The mediator should contribute to the unofficial reconciliation of the victim with the accused, especially in cases of minors, where the question is raised of replacing punishment with a measure of compulsory educational influence. Anthropological and psychological factors are important in mediation, reconciliation must be real and accompanied by repentance of the perpetrator and have an educational effect. At the same time, the compensatory factor has a subsidiary value and is the subject of agreement between the parties. In the conciliatory procedure of «transaction», which is embodied in Article 28.1 of the Code of Criminal Procedure of the Russian Federation, the main goal is to compensate for the material damage caused by the crime in full. The legal composition of the material basis of a «transaction» is limited to material compensation. Therefore, the scope of this conciliation procedure should be limited to crimes against other people's property of small and medium gravity, as well as tax crimes and some crimes of an economic nature.
The purpose of this work is to classify the types and identify the main patterns of development of conciliation procedures as grounds for determining possible directions of their modernization. The objectives of the study include identifying differences in the types of conciliation procedures, allocation of classification criteria, establishing the absence of the necessary components of each of them, which require replenishment in the subsequent legal construction. The main methods of achieving the set goals and solving problems, along with dialectics, logical and formal legal methods of cognition and evaluation of the data obtained, were the method of comparative jurisprudence and the systematic method, which made it possible to implement a comprehensive, intersectoral approach.
The results of the study were the author's proposals regarding promising directions for the development of conciliatory criminal procedural procedures related to the concentration of powers for their application by the prosecutor and the investigating judge.

82-88 245
Abstract

The contradictory development of legislation regulating the legal position of the prosecutor in pre-trial proceedings has led to a crisis of scientific doctrine. The current model of criminal procedural activity of the prosecutor in pre-trial proceedings does not correspond to the modern era. The centralization of State power should also be reflected in the centralization of procedural power in pre-trial proceedings. The prosecutor needs to become again, as in the times of the Russian Empire and as in many developed criminal procedural systems of the world, the head of the prosecutorial power of the state. On behalf of the State, he is called upon to act as a subject of prosecution and evidence during pre-trial proceedings. The prosecutor must be the procedural head and organizer of the pre-trial proceedings and be responsible for the results of the preliminary investigation. Only autocracy in the system of public criminal prosecution bodies can guarantee the proper quality of the preliminary investigation and the effectiveness of criminal prosecution.
The purpose of the article is to overcome the existing contradictions in the doctrine of criminal procedure law on the basis of the Russian legal tradition based on the postulates of modern jurisprudence on the structure of state power and the legal organization of crime prevention. The tasks solved in the course of the study were, firstly, the proposal of the author's concept of the leading procedural role of the prosecutor in pre-trial proceedings; secondly, the development of drafts of specific regulatory legal prescriptions that embody this concept. Along with the main methods, methods of theoretical modeling, historical method and comparative jurisprudence have been used.
The results of the study were the author's provisions aimed at developing the concept of a procedural prosecutor, which should ensure the continuity of the prosecutor's procedural activities in pre-trial proceedings and in court. The three-tier model of pre-trial proceedings "police-prosecutor-court" can be taken as a basis for the modernization of pre-trial proceedings and the participation of the prosecutor in it.

89-96 181
Abstract

The use of legal and other social norms or practices in crime prevention is a debatable issue. The relevance of the topic is due to the ambiguous position of theorists and practitioners on the admissibility of using potestary forms (measures) of an educational and preventive nature in relation to minors by parents and / or legal representatives. Thus, the purpose of the article is to scientifically analyze the possibility of including coercive potestary methods of crime prevention that exist in the family, community, ethnic group, labor (professional) team in the toolkit for preventing antisocial and / or criminal behavior.
Achieving the goal involves solving the following tasks: substantiation of the effectiveness of a combination of measures of state coercion and potestary coercion (parental, ethnic, confessional) to eliminate and neutralize criminogenic determinants; argumentation of the need to use potestary coercion in anticriminal prevention – an informal social institution for imposing cultural attitudes, value values, evaluative standards, rules of conduct through the prism of collective opinion and seniority.
The goals and objectives of the study contributed to the choice of a methodology presented by a systematic approach that considers the phenomenon of potestary measures in conjunction with preventive legislation, and the use of content analysis made it possible to systematize information about potestary measures (forms) of educational and preventive impact based on a consistent analysis of publications on the subject under study.
As a result, proposals were made to modernize the legislation, expanding the list of forms (measures) of compulsory educational influence in relation to minors, as well as justifying the inclusion in the Criminal Code of the Russian Federation of the norm Circumstances for the admissibility of behavior that does not pose a public danger.

97-105 501
Abstract

The article analyzes modern approaches to the use of digital technologies and associated technical devices in domestic criminal proceedings, allowing not only to speed up and simplify work, but also to serve as an important factor in citizens' access to justice. According to the author, some results of digitalization have already been reflected in the text of the Criminal Procedure Code of the Russian Federation, creating favorable prerequisites for the electronic form of criminal cases, combining at the initial stage of reform in this area the traditional criminal procedure form with its electronic version. It is emphasized that the potential of digitalization in criminal proceedings is being realized in other areas: from video conferencing to billing technology, with the prospect of introducing new technologies: blockchain, artificial intelligence, electronic identification of a person, a digital profile of a person.
The purpose of this study is to substantiate the need to consolidate the concept of "digital technologies" in the basic Article 5 of the Criminal Procedure Code of the Russian Federation, which will significantly change the appearance of criminal proceedings. Research objectives: to analyze the types of digital technologies used in the current version of the Criminal Procedure Code of the Russian Federation, to determine the prospects for improvement and the emergence of new technologies (taking into account domestic and foreign experience), to formulate the concept of digital technologies in criminal proceedings.



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