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Legal Bulletin of the Kuban State University

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No 1 (2021)
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CIVIL LAW; BUSINESS LAW; FAMILY LAW; PRIVATE INTERNATIONAL LAW

17-22 266
Abstract

The article is devoted to the philosophy of civil law in the tradition of the countries of «common law». It is noted that if the civil law study of the Russian (and continental) model moves primarily in an analytical way, when existing institutions are taken as a basis and are divided into component parts, then a common law lawyer rather acts in a synthetic way, collecting various configurations from existing institutions. The purpose of this study is to develop new methodological approaches to the study of the legal category “philosophy of civil law in common law countries”. To achieve the goal of the study, the complex used general scientific methods of scientific cognition, including the dialectical method, as well as the method of system analysis, the comparative legal method, and a number of others. In the course of the study, the following results were achieved and the following conclusions were made: in contrast to Russia, in common law countries, civil law is logically endowed with the following features: (1) individuals not only interact, but oppose each other, which (2) requires protection, which (3) is carried out by the judicial authorities, not so much enforcing the common interests, but protecting the private interests of the participants through individually adopted measures, from the sum of which civil law institutions grow.

22-28 213
Abstract

The purpose of the article is to study the problematic aspects on the execution of state contracts for public needs. The object of the research is the analysis of the social relations between the state customer and the supplier concerning efficient execution of contract obligations. The subject of research is the legal rules of civil legislation and the public procurement legislation. In order to achieve the set goal, the questions of correlation of expertise under the legislation on the contractual system in the field of public procurement and civil legislation were raised, and the existing practice of application of the designated norms was studied. As a result of the research, certain difficulties have been identified in law enforcement practice in the implementation of norms for the acceptance of performed work. Some proposals were made to improve the norms on mandatory examination of the result of execution under government contracts. Some conclusions were also made about the possibility of the customer to involve an independent expert according to the norms of civil law in case of dispute, about the proper behavior of the parties in case of a discrepancy between the results of examinations carried out separately by the customer and the contractor, about the allocation of the burden and costs of conducting a mandatory expertise of state contract execution, etc. 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.).

29-38 792
Abstract

Defamation law originated and developed in England (England and Wales). Further, it became widespread not only in the countries of Anglo-Saxon, but also Romano-Germanic law, including Russia. One of the effective civil law methods of judicial protection against defamatory tort aimed at belittling honor, dignity and business reputation in Russia is compensation for moral damage - an analogue of British compensatory damages for non-pecuniary harm, awarded for “pain and suffering ”(pain and suffering) in the form of emotional disorders (emotional distress). The digital revolution brought with it new types of defamation tort, which became a kind of trigger for further improvement of defamation law, the need to increase the effectiveness of judicial protection against defamation through compensation for moral damage.

Purpose: to identify and analyze the extent to which English defamation law is implemented by Russian legislation, to determine the most effective model for determining the amount of compensation for moral damage for defamation.

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

Findings: The concept of defamation is identical to the dissemination of untrue defamatory information, as well as any untrue information about a citizen contained in Art. 152 of the Civil Code of the Russian Federation. The owners of social networks, in addition to the author of the publication, should bear civil liability for the dissemination of defamatory information as a publisher who has not taken effective measures to remove it in a timely manner. In Russia, it is necessary to legislatively introduce the concept of presumed moral harm, fixing its size in a special table approved and annually updated by the Plenum of the Supreme Court of the Russian Federation. In Russia, it is necessary to refuse innocent compensation for moral damage for defamation (Article 1100 of the Civil Code of the Russian Federation). In the event of a defamatory tort in relation to the deceased who had a profile on a social network and received a public projection as a result, their heirs have the right to file defamation claims and demand refutation and compensation for moral damage. 

38-45 253
Abstract

Introduction: The paper examines the question of the sufficiency of the existing system of ways to protect civil rights, its practical implementation and effectiveness, taking into account modern judicial practice.

Purpose: To formulate proposals for improving the civil law regulation of the system of ways to protect civil rights in order to expand the possibilities of applying judicial protection of civil rights and interests of participants in civil law relations.

Methods: The research methodology is based on the dialectical method of scientific cognition. The author uses general scientific (analysis and synthesis, induction and deduction, system) and private scientific research methods (formal-legal, comparative-legal, specific sociological research).

Results: The practice of applying Article 13 of the Civil Code of the Russian Federation in relation to certificates and declarations of quality of goods sold is analyzed. It is shown that participants in civil turnover require the provision of judicial protection, including by recognizing the issued certificates as not meeting the requirements of the law and other regulatory acts. The strategic task facing the legislator of the country is defined and consists in the need to improve the disposition of Article 13 of the Civil Code of the Russian Federation in order to expand the possibility of applying judicial protection of civil rights and interests of participants in civil law relations.

Conclusions: The analysis of numerous examples from judicial practice on the application of Article 13 of the Civil Code of the Russian Federation in relation to certificates and declarations of quality of products sold showed the need to clarify the wording of this norm in order to provide a legal opportunity for its use by participants in civil turnover for judicial protection of their rights.

CRIMINAL LAW AND CRIMINOLOGY; PENAL LAW

46-54 1181
Abstract

Purpose and Objectives: The article examines existing approaches to the systematization of criminal law measures and determines the prospects for the development of this system. The tasks related to the definition of measures of a criminal-legal nature, the establishment of methodological principles for their systematization and classification, the determination of the prospects for the application of measures of a criminal-legal nature in the implementation of criminal liability and exemption from liability are solved.

Methods: The work is based on the requirements and principles of system analysis, namely: objectivity, comprehensiveness, completeness of the study. The main method of research is classification, which assumes the coverage of all objects of the classification division and the justification of objective grounds for their gradation into types.

Results: As a starting point, it is necessary to include in the list of measures of a criminal legal nature only those that apply to persons who have committed crimes. It is proved that the measures of a criminal-legal nature are not identical to the criminal-legal consequences of committing a crime and criminal liability. Measures of a criminal nature are classified on the basis of three criteria, based on the ratio to criminal liability, on the possibility of joint appointment, and on internal content. It is recognized that criminal law measures form an independent criminal law institution, the content of which currently depends on the basic parameters of the country's criminal policy, and therefore possible prospects for the development of the types and content of criminal law measures are established. Special attention is paid to such a problematic topic as the application of criminal law measures in the release from criminal liability; the fundamental admissibility of their regulation in the criminal law is argued.

ADMINISTRATIVE LAW; ADMINISTRATIVE PROCESS

87-92 264
Abstract

The purpose of the study is a comparative analysis of the experience of public law regulation of the export of medical technologies in the Russian Federation in relation to foreign legislation. The objectives of the study are: the concept of legal regulation of the export of medical technologies in the national export system, as well as the practice of legal regulation of public relations related to the export of medical technologies and their differentiation with medical services and other forms of transfer of medical care. The experience of the COVID-19 coronavirus infection pandemic and other emergency situations of a sanitary and epidemiological nature suggests the possibility of forming the export potential of medical technologies in Russia. The russian legislation on foreign economic activity concerns medical goods, services in the field of public health protection, but does not сoncern technologies in the field of medicine. The export of technologies of this kind comes into contact with various ethical, religious foundations of specific states[1]importers of medical technologies and requires a differentiated approach to the legal regulation of exports. These and other initial problems make it necessary to determine the conceptual framework of the export of medical technologies and the place of this phenomenon in the system of social relations regulated by the norms of law. The goals and objectives of the work determined the research methodology, which is based on comparative legal methods of legal comparative studies. The fundamental result of this work is the idea that the export of medical technologies is limited by the difference in the legislation on the protection of intellectual property in Russia and foreign countries. In this regard, it is necessary to proceed from the priority of the legislation of the country where such technology is exported subject to possible international and national restrictions.

CRIMINAL PROCESS

55-61 347
Abstract

Coercion is the most important institution of criminal procedural law, which determines not only the directions of restrictive influence, but also the essence of criminal court proceedings. The direct impact on the rights of its participants is accompanied by many theoretical and applied problems. The purpose of this study is to obtain new knowledge about the essence, forms of coercive influence in the conditions of criminal proceedings and the methods of legal support that properly protect and defend the legitimate interests of subjects of criminal procedural relations. Tasks to be solved: study of modern conditions that contribute to a change in the concept of coercion in criminal proceedings and those measures that have a restrictive effect on the legal status of subjects of criminal procedural relations; understanding the trends in the science of criminal procedure, influencing the modern ideas about the measures of coercion and the means of ensuring rights; formation of the author's position on the essence and types of law-limiting and law-enforcement influence in criminal proceedings; putting forward a scientific hypothesis about correcting the essence of criminal procedural coercion; search for grounds for its confirmation and substantiation of conclusions. The study was carried out on the basis of a set of general scientific and specific scientific methods, including dialectics, various types of analysis, synthesis, generalization, logical, systemic and structural, modeling, etc. The results of this study have become scientific knowledge that complements and, in some part, clarifies the concept of the essence of procedural coercion, measures of coercion, their classification, methods of influencing the legal status of subjects of criminal procedural relations, means of legal enforcement that properly guarantee the protection and protection of legal interests. participants in criminal proceedings. On the basis of the results obtained, separate proposals were formulated on improving the legislation in terms of both the formation of measures of procedural coercion, and the means of ensuring protection from legal restrictions. The author's vision of solving some of the problems arising in the case of legal restrictions applied to legal entities is formulated.

62-71 323
Abstract

The main purpose of this study is to form an understanding of the current criminal procedure regulation of the regime of seizure of electronic media of information and copying information from them in the course of certain investigative actions, taking into account the existing doctrine and provisions of the domestic criminal procedure legislation. Within the framework of this goal, the following tasks were solved: an analysis and generalization of scientific material on problems related to electronic media in criminal proceedings was carried out; the provisions of the current criminal procedural legislation of the Russian Federation, which are related to the procedure for the seizure of electronic media of information and copying information from them during the production of certain investigative actions, were critically studied; the development of ways of solving the existing problems in the course of the withdrawal of electronic information carriers and copying information from them is proposed. In the presented study, traditional general (dialectical, formal-logical) and private (legal-dogmatic, interpretation of legal norms, comparative legal, descriptive, interpretive) methods of scientific cognition were used, which contributed to the acquisition of new knowledge about electronic media in the criminal process, the decision some problems arising in law enforcement in connection with the seizure of electronic media of information and copying information from them. As a result of the conducted research: the necessity of solving the problem of legislative definition of the concept of "electronic media" is stated; the importance of proper regulation of the procedural procedure for the seizure of electronic media of information and copying of information from them in the course of pre[1]trial proceedings in criminal cases on crimes committed in the field of entrepreneurial activity is noted; the importance of the participation of specialists in the seizure of electronic media is substantiated; analyzes doctrinal approaches on the essence and legal nature of copying information from electronic media; the points of view existing in science regarding investigative and procedural actions related to the withdrawal of electronic media and copying information from them are critically evaluated. The following main conclusions are formulated: 1) information technologies in a developing post-industrial society are gradually being introduced into all spheres of human activity, the dynamics of indicators of crimes committed using the digital environment is also growing, however, criminal procedural legislation regulates activities for the seizure of the use of electronic media on the basis of rules developed even before the emergence of the latest and modern technologies, and does not always take into account the specifics of the constantly changing digital information; 2) the problem of the seizure of electronic media in criminal proceedings has recently attracted the attention of scientists, which is explained by the increase in its importance in modern conditions from the point of view of ensuring guarantees for participants in criminal procedural legal relations. At the same time, in the field of scientific research of the procedural order of seizure and copying of electronic media, certain stereotypes have developed, the doctrine lacks a holistic approach to the study of this problem, which indicates the need for its formation; 3) taking into account the dynamic development of criminal procedural legislation, legal relations related to the seizure of electronic media are undergoing changes and require their decision, especially in criminal proceedings on crimes in the field of entrepreneurship and other economic activities; 4) the procedure for the production of investigative and procedural actions related to the seizure of electronic media of information, its copying, storage and use in evidence requires more detailed elaboration in the domestic criminal procedure legislation.

72-79 391
Abstract

The main purpose of the study is to obtain a set of new knowledge about the forms of activity of the court to establish the circumstances necessary for making a decision in pre-trial proceedings. Within the framework of this goal, the following tasks were solved: the study of legal provisions regulating the form of judicial cognition, including the receipt of information by the court, their sources, as well as the forms of use by the court of the acquired knowledge when making a procedural decision in pre-trial proceedings, the powers of the court, the rights of the parties to the court session; analysis and generalization of scientific material; development of ways to solve the existing problems in the use of information by the court that does not have a procedural form of evidence; development of proposals for improving legislative regulation and recommendations for the application of the current criminal procedure legislation in ambiguous procedural situations. The basis for the study was the hypothesis proposed by the author about the possibility and necessity of adapting the criminal procedure form of judicial activity to solve the problems of pre-trial proceedings. The research methodology is based on traditional general and particular scientific methods, the combination of which allowed us to gain new knowledge about the content of the criminal procedure form of judicial activity, its characteristic features, to consider the reasons for the emergence of applied problems of making procedural court decisions, the so-called judicial "copy-paste", etc., to draw scientifically significant conclusions. The results of the study were: the author's formulations of the concepts of "adaptability of the criminal procedure form", "personification of the criminal procedure form"; the revealed and confirmed regularity of the connection between the criminal procedure form and the validity of judicial procedural decisions; the inexpediency of presenting the same requirements to court decisions taken in pre-trial proceedings as to the court verdict; the direct connection between the problem of the validity of a court decision and the copying of the texts of indictment documents into the content of court decisions ("copy-paste") is established; the author's proposals for solving the identified problems are formulated. The following main conclusions are made: 1) the solution of many problems of judicial activity in pre-trial proceedings is possible on the condition of adaptation and personalization of its (activity) procedural form and the introduction of appropriate procedural features; 2) the lack of legislative regulation of the basic rules of the procedural form of evidentiary activity does not allow the court to make decisions that fully meet the requirements of the criminal procedure law; 3) in order to solve the problems of the validity of a court decision, the following general rule is proposed: the court is obliged to take all necessary measures to establish all the circumstances essential for the given case by means available at the court session. At the same time, the methods must have legal regulations.

80-86 198
Abstract

The purpose of criminal proceedings predetermines the need to form effective procedural mechanisms that ensure the protection of the rights of persons who have suffered from a crime or from illegal and / or unjustified criminal prosecution. However, the purpose of criminal proceedings in itself is only a vector that determines the direction of development of the criminal procedural law, and its (law) content is determined based on many factors, one of which, the most significant, is scientific developments. Compensation for moral harm in criminal proceedings seems to be a promising scientific direction, within the framework of which numerous positions are expressed, interesting concepts are formed, and non-standard solutions to many complex problems are proposed. The purpose of this study is the formation of a generalized concept of compensation for moral harm in criminal proceedings, corresponding to modern scientific achievements. Within its framework, the following tasks were solved: determination of the main features and the formation of a theoretical definition of moral harm in relation to the sphere of criminal proceedings; study of the legislative basis of the mechanism of compensation for moral harm and its problematic aspects; determination of the grounds for the emergence of the right to compensation for moral damage; study of the problem of unification and differentiation of judicial practice in terms of determining the amount of compensation for moral damage caused, etc. The main research methods were: dialectical, historical, logical, analysis and synthesis, generalization, comparative legal, formal legal, systemic and structural. The results are the following conclusions and proposals: - moral harm in criminal proceedings is a particularly controversial topic in the science of criminal procedure and a difficult problem in law enforcement. The resolution of the existing difficulties is possible solely on the basis of fundamental scientific developments, taking into account the basic needs of practice; - moral harm can be the result of not only a crime, but also illegal criminal prosecution of a person involved in its commission, which necessitates the legislative consolidation of an appropriate mechanism for its compensation; - the grounds for compensation for moral damage is a set of circumstances, the establishment of which is within the competence of the court, when considering and resolving a criminal case on the merits of the charge brought; - the subjects entitled to compensation for moral damage are both individuals and legal entities acting both in official procedural status and involved in criminal proceedings; - compensation is subject to damage caused by any category of crimes, including crimes against property. 

ТЕОРИЯ И ИСТОРИЯ ГОСУДАРСТВА И ПРАВА; ИСТОРИЯ УЧЕНИЙ О ПРАВЕ И ГОСУДАРСТВЕ

2-9 323
Abstract

The research is aimed at studying the concept of legal pluralism, which is currently under formation. Legal science is devepoling a traditional approach to legal pluralism, which originates from anthropological-legal theories, however, it seems that the phenomenon of legal pluralism is complex and multifaceted, which requires a comprehensive analysis of its origins, as well as the study of those socio-legal theories that will reveal its content most fully. The purpose of this study is to identify the importance of the concept of legal realism as a theoretical ground for the formation of ideas about legal pluralism. To achieve the goal of the study were used in a complex of general scientific methods, with the functional approach to the understanding of law, which allows us to identify practically useful properties of law and legal phenomena, which include legal pluralism. In the course of the conducted research, the following results were achieved and the following conclusions were drawn: 1. Legal realism became one of the theoretical foundations for the development of the idea of legal pluralism. In particulary, it was promoted by the anthropological and realistic theory of K. Llewellyn, who together with A. Hobel studied the process of formation of legal rules among Indians through the conflicts arising in the society. 2. It cannot be argued that the realists formulated their approach on the basis of the recognition of the existence, along with the state, of some other law. As practicing lawyers, they built their theories within the framework of positive law, which has such characteristics as formal certainty, authorization by the state, and the provision of state coercion. 3. Both legal realism and legal pluralism have a common philosophical foundation - this is pragmatism. Relying on the ideology of practical utility, proponents of legal realism tried to understand the functional essence of law, to understand the causes of uncertainty of law. 4. K. Llewellyn believed that legal pluralism should be perceived in the process of law enforcement, as well as judicial lawmaking. The existence of the same rule of law in practice can lead to different variations in its implementation. One of the reasons for this is the approach to the interpretation of the rule of law, and the other is the way the rule is formulated in the judicial precedent in the process of judicial lawmaking. In order to unambiguously and definitively apply a rule of law, the judge must reflect all the circumstances of the case in as much detail as possible. This will eliminate legal pluralism and ensure certainty of law.

10-16 338
Abstract

The purpose of this article is to study a complex set of factors affecting the implementation of the principles of the rule of law in contemporary Russia. In order to achieve this goal, it is necessary to give a general characteristic of these factors and to classify them on various grounds, including in relation to contemporary Russian conditions. To solve these problems, it is proposed to use a number of research methods: logical (description, classification), system-structural, comparative. As a result of the study, it was revealed that these factors can be objective (for example, economic, cultural and other conditions of public life) and subjective (in particular, the level and specifics of legal awareness and legal culture). These factors can also be divided into organizational, informational, social, cultural-ethnic, economic, political, factors related to the transformation of legal consciousness and legal culture. The factors influencing the implementation of the principles of the rule of law in contemporary Russia are very multidimensional and have a specific refraction in relation to the set of the characteristics of the contemporary Russian state and its legal system, public life in general. Conclusion. The complex of these factors should be the subject of more detailed scientific research and comprehensive assessment in relation to the conditions of the functioning of the contemporary Russian state and the life of modern society. In practical terms, some factors should become the object of stimulation as a result of such doctrinal analysis and, if necessary adjusted by the state, while others should be neglected due to the loss their of relevance.



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