No 2 (2018)
- Year: 2018
- Articles: 10
- URL: https://vektornaukipravo.ru/jour/issue/view/17
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Description:
Published 29.06.2018
Full Issue
TOPICAL ISSUES OF REGULATION OF THE CONSTITUTIONAL LEGAL STATUS OF THE PRESIDENT OF THE RUSSIAN FEDERATION
Abstract
This paper covers the study of the constitutional legal status of the President of the Russian Federation, its elements and special aspects that are not articulated or poorly articulated in the current Russian legislation. The author defines the concept of “the status of the President”, makes an attempt to distinguish the concepts of “status”, “legal status”, and “constitutional legal status” and to determine proper terminology. The approaches to the understanding of the status’s elements are analyzed and substantiated. The paper contains the actual list of the elements of the constitutional legal status of the RF President developed within the constitutional law doctrine. The author considers the powers, functions, and guarantees of the implementation of activities of the RF President and studies the procedure of their acquisition and loss. The paper tells of the co-relation of the status of a Presidential candidate and the status of the RF President, gives the positive examples of the evaluation of the constitutional legal status in the foreign legislation and suggests considering in details the elements offered by the juridical science and making some amendments to the national law. The regulatory basis, diversified in its structure and content and confirming the status of the RF President, is studied and its imperfection is highlighted. The author observes the necessity to create a single regulatory legal act reflecting the entire powers of the President, his responsibility, guarantees of the implementation of his activities, the procedure and the basis for the acquisition of the constitutional legal status of the RF President, as well as the procedure and the basis for its loss and other conceptual issues of the status of the RF President. The conducted study allows identifying the main gaps and problems in the sphere of confirming the constitutional legal status of the President of the RF and offering their alternative solutions.
5-9
THE WAIVER OF SUBJECTIVE RIGHT AND THE ENFORCEMENT OF PROCEDURAL RIGHTS
Abstract
The paper discusses the issues of limiting the waiver of subjective rights in the context of the enforcement of procedural rights. The author notes that the essence of a subjective right is that a person is free to decide whether to use this right or not. The enforcement of a subjective right contradicts with its essence. Only a person decides what is good or bad for him or her. Based on this view, the author concludes that no one can enforce any of his or her rights. At the same time, the author writes that, in the exceptional cases, the law may provide for the possibility of the procedural rights enforcement. Based on the certain public interests, the state, in certain situations, refuses to comply with the requirement to exercise by a person his or her subjective rights and provides for the mechanisms of their enforcement by law. In the paper, the author discusses the enforcement of the defendant’s right to defense, the right to judicial protection, the right to appeal a judicial act, and considers the cases of the enforcement of the right to judicial protection as a part of the procedural law of the RA.
In the paper, the author emphasizes the institution of the obligatory participation of a defender as a procedural mechanism of enforcement of the defendant’s right to defense. The cases when the participation of a defender is mandatory regardless of the wishes of an accused are listed.
The author concludes that no one can enforce any of his or her own rights. In the exceptional cases, the law may provide for the possibility of the procedural rights enforcement. In certain situations, the state refuses to comply with the requirement to exercise subjective rights by a person and provides for mechanisms of their enforcement by the law.
10-17
THE PROGRAM FOR THE PREVENTION OF THE RECURRENT CRIMES AND DELINQUENCY OF THE MINORS SENTENCED CONDITIONALLY. PART I. PSYCHOLOGICAL PREVENTION
Abstract
The Concept of the development of the penal enforcement system of the Russian Federation until 2020, as one of the main tasks, specifies the reducing of the repetition of crimes among the persons serving sentences. In this regard, the great scientific and practical importance is given to the problem of the prevention of the recurrent crimes and delinquencies of the minors sentenced conditionally which occupy the important place in the activities of psychological services of the institutions and bodies executing the sentences without isolation from the society.
The prevention of the recurrent crimes and delinquencies of the minors sentenced conditionally serves as the priority direction of the improvement of the activities of the corrective services (hereinafter-CS) of the Federal Penitentiary Service of Russia. Today, the CS of the Federal Penitentiary Service of Russia, being a part of the general system of prevention of crimes and delinquencies of minors, should create the necessary conditions for their successful resocialization in order to form the readiness of an adolescent for self-development, self-determination and the responsible attitude towards their life as well as the desire for lawful behavior.
The paper substantiates scientifically the results of the experimental probation of the program of prevention of the recurrent crimes and delinquencies of the minors sentenced conditionally. The author offers the mechanism for the organization of the effective functional cooperation of the psychologists of the corrective service of FPS of Russia with the civil psychologists (psychotherapists), reveals the problematic aspects of their joint activities in the psychological support of different categories of the minors sentenced conditionally. Based on the analysis of the questionnaire survey of the minors sentenced conditionally, the evaluation of the effectiveness of civil psychologists is carried out, the results of which demonstrate the formation of the prosocial values in the pursuance of lawful behavior – 35.7 % of the minors as well as the emergence of the desire to find a job – 21.6 % of the minors. The results of the implementation of the proposed program are reflected in the findings allowing stating that the involvement of civilian specialists-psychologists in the provision of the psychological assistance to the minors sentenced conditionally, promotes the optimization of the activity of psychological services of the CS of FPS of Russia by means of the rational allocation of human resources in the sphere of prevention of the recurrent crimes and delinquencies of the minors sentenced conditionally.
18-24
REVIEW of the textbook of Professor Ivan Andreevich Ivannikov “The Theory of State and Law: Contemporary Problems”
Abstract
The textbook of Professor I.A. Ivannikov “The Theory of State and Law: Contemporary Problems” is being reviewed. This textbook contains both the key traditional issues on the program in the theory of state and law and the topics being outside the traditional general academic program. The reviewer highlights the advantages of the study concerning the issues of defining the concepts of state and law, constitutional state, state and law forecasting, the co-relations of law and morality, law and strength, law and justice, the analysis of law policy and lawful life, lawmaking, etc. The author recognizes the study’s value and significance for the students, postgraduate students, and lecturers of the juridical higher educational institutions.
25-26
THE GENESIS OF CRIMINALISTIC KNOWLEDGE ABOUT THE INVESTIGATION OF CRIMES COMMITTED BY THE DEFENDANTS WITH MENTAL DISORDERS
Abstract
The paper considers the issues of integration of criminalistic knowledge genesis when investigating the crimes committed by the defendants with mental disorders. The research of this issue begins in the paper with the study of social activities retrospective. The study determined the existence of only a fragmentary understanding of historical information periodization and specified some contradictory opinions about the formation of such knowledge. The authors highlight the urgency of carrying out similar research to form a criminalistic technique. The opinions of legal scholarship since the XX century were considered. The authors formulated the task of integration of the information on the genesis of criminalistic knowledge necessary for the successful investigation of crimes committed by the defendants with mental disorders, identified the fundamental groups of social relations forming the modern scientific understanding of the investigation of crimes committed by the defendants with mental disorders. The groups of social relations that form the modern scientific understanding of the investigation of crimes committed by the defendants with mental disorders, which are critical within the sphere of the subject under consideration, are considered separately. The authors carried out the analysis of the specified fundamental groups of social relations forming the modern scientific understanding of the investigation of crimes committed by the defendants with mental disorders and reasoned the conclusion about the necessity to continue the scientific discussion on the issues of systematization of the genesis of criminalistic knowledge about the investigation of crimes committed by the defendants with mental disorders and to determine the limits of its content.
27-30
THE TRUTH AS A GROUND FOR THE DIFFERENTIATION OF A FORM OF ACTION
Abstract
The paper considers the question of the role and nature of the truth in criminal procedure, in respect of which the arguments continue at present in the theory of criminal procedure law. However, the changes of fundamental principles of the criminal proceeding under the influence of the introduction of the adversarial principle and the principle of presumption of innocence in it cause the revision of the traditional wisdom both about the goal of criminal procedure and the ways of its achievement.
The differentiation of form of action is initially the differentiation of the goals and the proof proceeding based on the principle of presumption of innocence making the goals, rules and the result of evidence conditional on the position of a defendant. The differentiation of criminally-remedial form of action involves both the differences in the standards of proof and in the criteria of evaluation of a sentence as well. Based on the specified approach, the author formulates the proposals aimed at the overcoming of theoretic differences by standardization of the results of the criminally-remedial activities.
Despite the absence of the whole picture of reasons for the differentiation of criminally-remedial form, two relatively independent systems of criminal proceedings have been formed in Russia by now. As a major criterion that allows selecting the form of action efficient for a certain case, it is offered to consider the goal of the criminal proceeding – reaching the truth or compromise – depending on the position of a defendant. In the result of the study, the author makes the conclusion on how the differentiation of forms of action influences the implementation of the criminal proceeding principles. The paper shows that the modern system of criminal proceeding of Russia cannot be described without simplified procedures.
31-35
STATE, LAW, AND SELF-GOVERNMENT IN THE VIEWS OF THEORETICIANS OF RUSSIAN ANARCHISM OF THE LATE XIX – EARLY XX CENTURIES
Abstract
The issue of self-government and its role in the state is addressed in all political theories, concepts, and doctrines starting from the extreme antiquity and is important nowadays as well. The author of this paper carries out the analysis of the views of Russian anarchism originators M.A. Bakunin and P.A. Kropotkin on the role of the state and self-governing communes that were followed by the anarcho-syndicalism representative D. Novomirsky. The paper contains the problematic-chronological analysis of the literature covering this problem. The author indicates not adequately investigated spheres concerning the study of regulators of social relations in a nonstate community of anarchists. The paper reveals the sources of the negation of state and law by the anarchism theoreticians who proved that the existence of a state was caused by the necessity of legal and powerful defense of the property. It is noted that the works of M.A. Bakunin do not demonstrate a clear image of the future arrangement of the society, but only a rough description of the uniting from top to bottom of self-governing communes. The paper reveals the development of these ideas in the works of P.A. Kropotkin who gave the detailed description of the anarchistic community and the attitude of self-governing communes to the asocial elements as to ill people who however have the right to life. The community of anarchists should not have fear to be punished. The paper considers the evolution of the ideas of nonstate arrangement under the influence of the development of industry and the growth of working class that caused the formation of such its variant as the anarcho-syndicalism. The author notes the specificity of the views of this trend in anarchism on the problem of creation of self-governing communes, writes about a new vision of the community arrangement caused by trade unions and their role in the industrial management. The exaggeration of awareness and voluntariness in observing the regulations of the interpersonal relations and attitude toward labor is highlighted. The author determines the importance of mutual agreements based on the equity as well as the arbitration court and coordinating authorities. It is specified that the main principle in the communes’ activity is the principle of non-intervention in the internal affairs of other communes.
36-40
THE QUESTION OF FINAL JUDGMENT ON THE CRIMINAL CASE AGAINST THE DECEASED
Abstract
The relevance of this paper is caused by the gaps in legal regulation of the arrangements for criminal proceedings within the conditions of the death of a defendant. The object of the study is the forms of final judgments taken by the court in a criminal case against a deceased defendant. The research is based on the position of the Russian Federation Constitutional Court expressed in its Resolution of the 14th of July 2011 No. 16-P “On the case of verification of the constitutionality of the provisions of paragraph 4 of the first part of Article 24 and paragraph 1 of Article 254 of the Russian Federation Code of Criminal Procedure in connection with the complaints of citizens S.I. Aleksandrin and Yu.F. Vashchenko”. The paper considers the essence of the acquittal and conviction judgments as a final judicial decision resolving the question of a defendant's guilt. The authors pay special attention to the essence of the decision about the criminal case termination as the final judicial act, as well as to the conditions for its pronunciation based on the non-exonerating grounds. The possibility of rendering a judgment by the court on a criminal case against the deceased or a decision on termination of a criminal case is considered in terms of the principle of the presumption of innocence. According to the results of the study, the authors make the conclusion that when establishing the deceased defendant’s guilt during a criminal trial, a conviction judgment without a punishment should be rendered, since the danger of a deceased person to the public is being lost with his or her death, and the application of a punishment to the deceased becomes impossible. However, no confirmation of guilt of the deceased during the trial indicates the necessity to deliver an acquittal judgment.
41-45
THE PROBLEM OF THE PROTECTION OF RIGHTS AND LEGITIMATE INTERESTS OF THE JOINT OWNERS OF A MULTI-APARTMENT HOUSE IN THE CONTEXT OF THE ADOPTION OF THE ARTICLE 181.5 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION
Abstract
The paper studies the problem of the protection of rights and legitimate interests of the joint owners of a multi-apartment house in the context of the adoption of the Article 181.5 of the Civil Code of the Russian Federation that is a part of “Chapter 9.1 of the decisions of the meetings”, its application, and the effect of the application of this legal norm by the courts when protecting by the joint owners of a multi-apartment house the violated rights and legitimate interests resulting from the holding of the house general meetings.
The object of the study is the norms of civil and housing law validating the nullity of the decisions of meetings of civil communities that are the owners of the premises in the multi-apartment houses considering the time allocated by the procedural law for the judicial protection of violated rights and legitimate interests.
The object of the study is also the judicial acts of general courts and the directives of Plenum of the Supreme Court of the Russian Federation regarding the application of the Article 181.5 of the Civil Code of the Russian Federation in conjunction with the limitations of actions.
In the context of the study, the authors used the formal legal method and various ways of interpretation of the civil norms. During the study, the comparative-judicial method was used which is demonstrated in the comparison of the provisions of various regulatory legal acts. The authors applied the philosophical categories of general, particular and private.
In the result of the research, the authors conclude about the ways the general courts interpret and apply the legal norms being studied and deal with some issues related to the prospects of the improvement of the institute of regulatory control in the civil and housing law.
46-51
CONCERNING THE INTERRELATION OF THE DEFENDANT’S RIGHT TO HAVE COMPETENT LEGAL ASSISTANCE AND THE RIGHT OF DEFENSE
Abstract
This paper considers the defendant’s right of defense in its interrelation with the constitutional right to have competent legal assistance. The author substantiates the thesis that the participation of a defense lawyer in criminal procedure is intended to compensate the procedural disparity of the defense party against the opportunities of the prosecution party in respect of the growing complicacy of the criminal procedural form. It is displayed that, as a rule, the defendant does not have knowledge and skills to countervail the prosecution. Moreover, the author pays attention to the fact that the RF Constitution guarantees every person the right to have competent legal assistance irrespective of his or her formal status within the criminal procedure. Given this, the task of reinterpretation of the advocacy role in criminal procedure is substantiated. As the current Russian Federation Code of Criminal Procedure proposed the defense of person’s rights and freedoms as the only purpose of criminal procedure, the activity of any and all official participants of criminal procedure (interrogator, crime investigator, prosecutor, court) should deal with the defense of the rights and freedoms of a person, first of all, of a complainant, suspect, and defendant not to commit the violations of the rights. In light of this, the paper considers the defense lawyer’s activity as the activity focused on the serving the interests of justice – when detecting the violations on the part of the investigation bodies and the court, appealing against the actions of the official participants of legal proceedings, struggling for the restoration of violated rights, the defense lawyer works for the improvement of quality of the criminal procedure activity in the whole. Thereout, the public function of a defense lawyer is derived. Following the results of the study carried out in the paper, the author makes the conclusion that the right to have competent legal assistance is the essential guarantee of the enforcement of the right for defense. The limitation of the right to have competent legal assistance affects negatively both the effectiveness of the criminal procedure in the whole and the state of the personality legal defense in particular.
52-56