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Legal Bulletin of the Kuban State University

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No 1 (2023)
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THEORETICAL-HISTORICAL LEGAL SCIENCES

7-12 180
Abstract

The purpose of the article is to analyze the neo-conservative concept of the state by L. Tikhomirov, which held a special position in the system of conservative political and legal doctrines of K.N. Leontiev, V.S. Solovyov, K.P. Pobedonostsev, M.N. Katkov. It was summed up to the following. The monarchy that really existed before the reform of the state mechanism in 1906 did not correspond to his ideals, since, while maintaining the form, it lacked a true Orthodox principle, a consistent social order and conditions for the development of the individual.

The study showed that the specific understanding of the supreme power, which reflects not class, but general social interests, expressed by him when he was the ideologist of populism, was preserved by him as one of the leaders of neoconservatism in the post-populist period.

Conclusion. L. Tikhomirov's ideal of Russian statehood was Orthodox monarchism with indivisible supreme power and a legislative and advisory representative body functioning under it, the status of a person and a citizen based on Christian values and a corporate social structure. Orthodox spiritual principles determine the essence of the state.

13-21 234
Abstract

Multidimensional content of the category of justice as a universal measure of behavior and worldview predetermines the appearance of new and even non-traditional interpretations of this concept in modern science. Problems of social justice, legal justice, distributive justice, formal, interpersonal and political justice have been repeatedly discussed by science at various levels, which is undoubtedly due to the role and regulatory function of justice in organizing social interaction.

The increasing conflictuality of society causes the practical need for such forms and methods of dispute resolution and conflict resolution, which would allow to use the positive function of conflict to ensure the coordinated and productive development of society and the satisfaction of the interests of its participants. The positive function of the conflict will be realized in the case of a general positive assessment of the fairness of interaction in its resolution, i.e. the assessment of a fair result and fairness of the procedure of its achievement. Meanwhile, today in science there is no unified approach to the definition of the criteria of general assessment of social interaction fairness, as well as the criteria of procedural fairness assessment.

The mentioned problems determine the relevance of independent doctrinal value and practical interest in the study of procedural justice as an interdisciplinary scientific category. The purpose of this study is to determine the main criteria of fair social interaction, which form a general assessment of interaction fairness, and constitute the theory of procedural justice on the basis of a comprehensive analysis of some aspects of procedural justice in the field of social psychology and conflictology.

In the course of this study it was found that:

1. Procedural fairness in the meaning of objective fairness is understood as conditioned by objective factors the possibility of independent control of the procedure and influence on it by the parties.

2. Subjective content of procedural fairness is the perception of decision-making procedure as a fair form of dispute resolution through satisfaction of personal interest. The revealed connection between the assessment of procedural fairness and making quality decisions, which determines the choice of such procedures, ensures the recognition and enforcement of decisions in the long term.

3. Criteria of fair social interaction that make up the overall assessment of fairness of interaction are the following: the content of social norms, the order (procedure) of their application and compliance with these social norms by participants of social relations.

PUBLIC LAW (STATE LAW) SCIENCES

22-30 182
Abstract

The purpose of this article is to analyze the role of advocate in resolving administrative legal disputes, identify current problems in this sphere and propose ways to solve it. In order to achieve this goal, it seems necessary to analyze the concept of an administrative legal dispute as tasks and determine the main ways to resolve it with the participation of a advocate; consider the basics and advantages of a lawyer's participation in the resolution of administrative legal disputes; analyze the problems of exercising the powers of an advocate in the resolution of administrative legal disputes.

The purpose and objectives of the work determined the methodology of this study, which is based on some methods: the method of dialectical materialism, system-structural, logical, formal-legal methods.

As a result of the conducted research, the author formulated his own conclusions, as well as some problematic aspects of a theoretical and law enforcement nature. The significant role of an advocate in the resolution of administrative legal disputes is justified, due to the nature and subject composition of such disputes, as well as the advantages of involving a person with the status of an advocate in the resolution of a dispute. Some problems of the implementation of the lawyer's powers in the resolution of administrative legal disputes have been identified.

31-39 207
Abstract

The purpose of the study is a comparative legal analysis of the classical concept of state supervision and the risk-based model for the implementation of this activity, provided for by the norms of the Federal Law of July 31, 2020 № 248-FZ "On State Control (Supervision) and Municipal Control in the Russian Federation" using the example powers of the police to detect and suppress offenses in the consumer market.

The methods, used by the author can be presented in a complex, among them a special place is occupied by analysis, synthesis, generalization, analytics, comparative legal and formal legal methods.

Based on the results of the study, it is concluded that it is necessary to further develop the institution of state supervision and establish horizontal links between sectoral supervision, special supervision and supra-sectoral supervisory powers of individual law enforcement agencies.

40-49 174
Abstract

The aim of the work is to analyze the problems of administrative and legal regulation of activities in the health insurance system in the Russian Federation.

Based on the goal set, the objectives of the study include an analysis of the problems of interaction between bodies and organizations exercising public powers in the field of CHI, on the one hand, medical organizations, on the other, and recipients of medical care, on the third.

Currently, there is an increase in the importance of insurance medicine, which causes special attention to the activities of the relevant funds and their relationship with other participants in the public administration system in the field of compulsory medical insurance.

The fundamental conclusion of the article is that the extremely confusing mechanism of compulsory health insurance has led to a rather complex system of interaction between bodies and organizations exercising public powers in the field of compulsory medical insurance, on the one hand, medical organizations, on the other, and recipients of medical care, on the other hand. third. This system of managerial interaction clearly requires simplification, but the origins of this simplification lie in the change in the system of financing the provision of medical care in the Russian Federation.

50-54 298
Abstract

The aim of the work is to highlight some theoretical conflicts caused by the emergence of new phenomena in modern public law, which sometimes cannot be unambiguously assessed as legal facts without resorting to "breaking" the established scientific consensus on this issue. An attempt has been made to show the relationship between the concepts of "legal fact" and "fact of legal significance" not in the sense that is given to this in civil procedural and arbitration procedural legislation.

The objectives of the work include the following research objects: illustration of judicial practice using non-standard terminology related to the establishment of facts of legal significance; analysis of informational phenomena that have legal significance, but do not fit into the "Procrustean bed" of events and actions.

Due to the fact that legal facts may have their own specifics, achievements and theories of private law are used in various branches of law.

The thesis is proved that in a number of cases it is necessary to separate the concepts of "legal fact" and "fact of legal significance", as well as that there are informational facts that have independent meaning, which have autonomous legal significance and lie outside legal facts.

PRIVATE LAW (CIVIL LAW) SCIENCES

55-62 304
Abstract

The purpose of this article is to develop recommendations for creating an optimal model of legal regulation of the use and protection of such an important category of land as agricultural land in the Russian Federation. In order to achieve this goal, it seems necessary to conduct a comparative analysis of Russian and foreign legislation regulating the use and protection of agricultural land, to identify shortcomings and positive experience of legislative regulation of the use and protection of agricultural land in the Russian Federation and foreign countries, to analyze some problems arising in Russian law enforcement practice in this area.

The purpose and objectives of the work determined the methodology of this study, which is based on a number of methods, in particular: comparative-legal, concrete-statistical, formal-logical, dialectical method of cognition of social phenomena and processes.

As a result of the conducted research, the author formulated a number of conclusions, as well as some recommendations regarding the improvement of Russian legislation in this area. In particular, both Russian and foreign legislation provides for the obligations of owners and other right holders of agricultural land plots to use them for their intended purpose, to preserve soil fertility, to take measures to protect land, to prevent harmful effects on the soil. In Russia, as well as in foreign countries, the rights and obligations of the rightholders of land plots, as well as measures to stimulate the effective use of land and protection of agricultural purposes are regulated mainly not by civil, but by special land and agrarian legislation. When studying foreign sources, it was not possible to find such a type of legal liability as the seizure of a land plot from the rightholder in case of its improper use, similar to the Russian one. It is proposed to introduce a number of amendments to Russian legislation, taking into account foreign experience in regulating land relations, which will help to qualitatively improve the use and protection of agricultural land.

63-70 653
Abstract

The article discusses the features of the legal regulation of the differentiation of objects of civil law for movable and immovable things. The main differences in the legal status of movable and immovable property are described, as well as the legal consequences of these differences. The article also analyzes in detail the problems of legal regulation of the differentiation of objects of civil law for movable and immovable things, including issues related to the determination of the value of property, its protection, transfer of ownership and liability for damage, as well as a comparative legal analysis of the status of movable and immovable property in the legislation of the Russian Federation and the PRC. Thus, the article is of Interest to lawyers, specialists In the field of civil law, as well as to anyone Interested In the legal regulation of property relations.

Research objectives: to determine the main criteria for the differentiation of movable and immovable property; to analyze the legal concept and the physical concept of the differentiation of things, to identify their advantages and disadvantages; to explore ways of legal regulation of movable and immovable property; to determine the practical significance of the differentiation of movable and immovable property for subjects of civil turnover.

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

Findings: the article considered important problems and features of the legal regulation of the differentiation of movable and immovable property in modern civil law. The absence of a single criterion for the classification of real estate, which has no drawbacks, leads to a wide range of scientific discussions in this area and the emergence of controversial situations. The authors came to the conclusion that real estate by nature is characterized by special physical properties, namely the presence of a relatively strong connection with the earth, which does not imply movement in space during operation. Also, some material objects, due to their characteristics, economic and social, require the consolidation of the legal status of real estate to ensure their proper operation and legal protection.

CRIMINAL LAW SCIENCES

71-80 203
Abstract

Based on the analysis of current trends and processes inherent in the digital environment, the state of the potential danger of criminal information impacts on protected objects, the article analyzes the existing strategic approaches in the field of information security. The importance of the system of normative legal regulation, methodological, scientific and technical support in solving the issues of information protection of protected objects is stated. The authors define the essence of the basic categories within the framework of the issues under study with an emphasis on today's socio-legal and criminological assessments, such as the concept of information security, means of its provision, criminological security of protected objects. Based on a synergistic approach, based on a number of factors, statistical data indicating unfavorable forecasts of crime in the field of information and communication technologies in the near and long term, an analysis of the existing levels of legal regulation, it is concluded that it is necessary to solve global problems of building digital sovereignty in cyberspace on program basis, state strategic planning, appropriate level of information legislation. The authors emphasize the importance of creating separate legal institutions aimed at solving complex problems of stimulating and supporting domestic solutions on information security issues, while focusing on organizational measures.

Based on the results of ongoing research, the possibility of creating a single coordination center is considered, the need for interaction between interested departments on its basis is stated. It is concluded that the activities of state bodies endowed with the competence to ensure the information security of protected objects should be considered from the standpoint of a systematic approach. The possibilities of the distinctive characteristics of the digital environment in solving the problems of preventing illegal manifestations are analyzed. The importance of information and analytical support for operational-search activities, criminological forecasting, achievements in the field of forensic science, which have significant applied potential for solving urgent problems, is emphasized.

81-91 164
Abstract

A new era has come in the state and legal development of Russia. A criminal law policy has been defined, the main provisions of which convince of the approval of such vectors of the development of criminal proceedings as ensuring the rights of the individual, protecting the individual from intrusion into the sphere of its interests by state bodies without significant reasons. These provisions make it necessary to develop new approaches to regulating the entire range of law-limiting means, which especially actualizes the problem of the corresponding development of operational investigative activities, the results of which can be considered as evidence and used during not only pre-trial proceedings, but also in judicial investigation.

Judicial evidence is the basis for establishing significant circumstances necessary for the resolution of a criminal case. The final court decision depends on the degree of reliability of the facts, the level of persuasiveness of their totality. One of the possible sources of information about significant circumstances are the results of operational investigative activities. Their use in evidence seems to be an important segment of criminal procedural activity, starting from the procedural ways of presenting them to the court, to evaluating the results of their research in the conditions of an adversarial judicial investigation. This whole procedural path is accompanied by numerous problems, one of which is the procedure for using the results of operational investigative activities in judicial evidence. Optimization of this procedure seems to be an important direction of modern criminal procedure science and a significant aspect of law enforcement.

The purpose of the study is to develop a new approach to solving the institutional problem of using the results of operational investigative activities in judicial evidence. The objectives of the study included: the formulation of a problematic situation in a new political and ideological context related to the definition of the procedure for using the results of operational investigative activities in judicial evidence; the definition of a theoretical and legal way to solve it; the development of specific author's proposals to change the procedure for using the results of operational investigative activities in judicial evidence.

The study was conducted on the basis of traditional methods: various types of analysis (structural-system, system-functional), generalization, formal-legal, comparative-legal.

The results of the study were the author's proposals aimed at optimizing the procedural form of using the results of operational investigative activities in the context of a judicial investigation, including a differentiated approach to the use of personal and material results of operational investigative measures in the judicial investigation, the formulation of legal standards for the presentation and research in the judicial investigation of the materials of operational records, interrogations of operatives, as well as classified witnesses charges that participated in the conduct of operational search activities.

92-100 232
Abstract

The implementation of the criminal procedure appeal is directly determined by the object, subject, boundaries, as well as those rules that establish the procedure for the activities of the participating entities. The appeal of procedural actions (inaction) and decisions can take place exclusively in the criminal procedural field. However, law enforcement practice and science demonstrate ambiguous approaches to the powers and procedure of the prosecutor and the head of the investigative body in the field of appeal. At the same time, only the prosecutor can independently submit submissions (in fact, complaints) against court decisions [5], decided in pretrial proceedings.

The purpose of the study is to identify problematic aspects of the procedural regulation of the status of the prosecutor and the head of the investigative body in the criminal procedure appeal in pretrial proceedings and the formation of the author's vision of ways to solve them.

The objectives of the study were: the study and analysis of individual provisions of the criminal procedure law defining the purpose, procedural tasks and the totality of the powers of the prosecutor and the head of the investigative body in the criminal procedure appeal in the pre-trial stages; research and generalization of law enforcement practice in terms of determining the most complex issues that do not have an objective authorizations; formulation of proposals to improve legislation and practice of participation of the prosecutor and the head of the investigative body in the criminal procedure appeal.

The methods of research are traditional methods of obtaining, studying and evaluating information of a theoretical, legislative and practical nature: dialectics, analysis (functional, systemic, logical), synthesis, generalization, modeling, comparative law.

The results of the study: a set of new knowledge about the essence and content of the procedural position of the prosecutor and the head of the investigative body in the framework of criminal procedural appeal, author's proposals and recommendations aimed at improving the criminal procedural law, optimizing law enforcement practice.

101-108 151
Abstract

The article examines in historical and modern aspects the legal regulation of the institution of suspicion in domestic criminal proceedings, outlining the author's approach to the doctrine of suspicion.

The purpose of this study is to comprehend the procedural formulation of "suspicion", in the absence of its legal concept in the Criminal Procedure Code of the Russian Federation (as opposed to the prosecution). Research objectives: to analyze the history of the formation of the national doctrine of suspicion, to summarize the provisions of the current criminal procedure law regarding the use of the term "suspicion", based on the analysis of various points of view to determine the signs characterizing suspicion, to formulate the author's concept of procedural suspicion.

109-118 153
Abstract

Criminal proceedings on economic crimes occupy an important place in modern criminal law science. Many aspects have already become the subject of scientific research and have been revealed on the pages of monographic works, abstracts of speeches, etc. The criminal procedural proof in criminal cases of crimes related to illegal banking activities was no exception to this series. It is worth noting that banking is both an important segment for the country's economy and an area of increased criminogenicity due to the possibility of committing crimes of a very different orientation. The commission of crimes provided for by the disposition of Article 172 of the Criminal Code of the Russian Federation negatively affects the functioning of the banking system as a whole. The variety and scale of such crimes poses an urgent task for the science of criminal procedure to identify common patterns of formation of legal methods of cognition used by law enforcement agencies in the identification, investigation and disclosure of these crimes.

Conducting a study of the problems of establishing circumstances in criminal cases of illegal banking activity led to the hypothesis of the need to use two categories known in the theory of proof – "procedural knowledge" and "technology of proof", which do not yet have a well-established scientific and practical application. It is assumed that the use of these concepts with filling them with a well-defined content can give a new impetus to the development of the doctrine of proof and evidence in criminal proceedings in cases of this category.

The purpose of the study is to determine the essence and demonstrate the potential of the technology of proof and the introduction into the legal field of procedural knowledge in criminal cases of illegal banking activities.

To achieve this goal, the following tasks were set: to investigate the essence and define the categories "technology of proof", "procedural knowledge"; to study the legal foundations of the technology of formation of procedural knowledge; to determine the possibility of integrating evidence technology into law enforcement activities.

The main research methods were: system-functional analysis, semantic analysis, synthesis, generalization, modeling, formal-legal, comparative-legal.

The result of the study was a set of new knowledge about the legal ways to obtain information about the circumstances of crimes committed in the banking sector. The article shows which operational investigative measures, investigative actions, procedural actions and their combinations are used at various stages of the formation of "procedural knowledge" suitable for making a final decision on the case. Through the category of "technology of proof", various aspects of the activities of the preliminary investigation bodies and operational search units for the formation of "procedural knowledge" are presented.

The article draws specific conclusions about the features of the technology of developing procedural knowledge in criminal cases of crimes related to illegal banking activities.

119-126 169
Abstract

The article is devoted to the problems of preserving historical and cultural monuments that have been damaged as a result of crimes. It is noted that the legal means of influence existing in the criminal law on persons committing these criminal acts are unable to prevent the guilty from achieving a criminal goal – ensuring the possibility of unhindered disposal of the object of protection, the land plot occupied by them. In this regard, the author draws attention to the mechanism of confiscation of the land plot of the territory of the destroyed object of cultural heritage, the land plot on which the archaeological monument was located, the identified object of cultural heritage existing in the norms of positive law. The domestic legislator considers the above measure as a sanction for the commission of a crime or other offense, determining the relevance of making corresponding changes and, as a result, expanding the possibilities of applying art. 104 of the Criminal code of the Russian Federation.

The purpose of the research is to study the place of the institution of confiscation in the system of domestic criminal law, to study the possibilities of expanding its application in relation to objects of the material world, including historical and cultural monuments damaged (destroyed) as a result of the commission of a crime. To achieve this goal, the following tasks should be solved: to summarize the opinion of scientists considering the institution of confiscation in the context of solving the criminal and political tasks of the state; to study foreign law enforcement experience, and also turn to sources of international law that determine the possibility of using the institute of compulsory seizure of heritage elements; to determine the conditions for the use of confiscation, predetermined by the provisions existing in the norms of positive law. The author used the dialectical method of research, in inseparable unity with the methods of analysis, synthesis. In addition, descriptive, comparative legal methods were used.

The result of the study was the author's proposals to supplement the content of art. 104 of the Criminal code of the Russian Federation with paragraph «e», providing for the possibility of confiscation of the land plot of the territory of the destroyed object of cultural heritage, including the archaeological monument, the identified object of cultural heritage from the owner or other legal owner.

127-135 210
Abstract

The purpose of this scientific work is the analysis of the use of the expertise in the area of judiciary psychology and psychiatry in the criminal proceedings. In order to achieve this objective, the following tasks must be accomplished: to consider differences in expertise, to explore the use the expertise, to identify problems of the assignment of forensic psychological and psychiatric expertise.

A number of methods were used to achieve the objectives. They are logical (description, classification), comparative legal, systematic structural analysis.

The study revealed that in order to make the most efficient use of expertise in the area of judiciary psychology and psychiatry it is necessary to enshrine the notion "expertise" and consolidate advisory and reference activity as procedural form of expertise.

Conclusion. The use of expertise in forensic psychology and psychiatry helps to improve the tactics of separate investigative actions and study individual psychological conditions of participants in criminal proceedings. It will improve the efficiency of criminal cases.



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