No 1 (2019)
- Year: 2019
- Published: 29.03.2019
- Articles: 8
- URL: https://vektornaukipravo.ru/jour/issue/view/2
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Description:
Published 29.03.2019
Full Issue
THE ISSUES OF DETERMINATION OF THE CRITERION OF NECESSITY OF ENGAGING AN EXPERT WHEN CONFISCATING THE ELECTRONIC DATA STORAGE DEVICES IN CRIMINAL PROCEEDING OF RUSSIA
Abstract
The paper deals with the contemporary issues of using special knowledge in the criminal proceeding of Russia when holding the investigative proceedings during the preliminary investigation. Taking into account the normative requirement to ensure participation of an expert in the investigative proceedings when it is necessary to seize an electronic data storage device, the author updates the issue of defining the content of the concept of “electronic data storage device” and discusses the issue of determination of a criterion of the necessity of obligatory participation of an expert when confiscating an electronic data storage device. In the context of general positive assessment of the legislative innovation related to the legislator’s attempt to improve the procedure of seizing of electronic data storage devices during criminal proceedings, the author notes the absence of normative definition of the category of “electronic data storage device” in the Russian Federation Code of Criminal Procedure and proposes to include it into Art. 5 of the RF Code of Criminal Procedure to improve statutory regulation. The paper presents examples of electronic data storage devices that do not require complicated arrangements to work with and for which confiscation there is no need for special knowledge. The author suggests making amendments to Art. 164.1 of the RF Code of Criminal Procedure aimed at the normative determination of the situations when the participation of an expert in the seizure of electronic data storage devices will not be obligatory taking into account the criticism pronounced in science. The author concludes that the work with electronic data storage devices during the investigative proceedings obviously requires the exact regulation, the absence of which causes the creation of divergent legal precedents and varying interpretations.
9-13
THE PROBLEMS OF LEGISLATIVE REGULATION AND PRACTICE OF APPLICATION OF MILITARY CRIMINAL PUNISHMENTS
Abstract
The paper presents the analysis of the problems of legislative regulation and practice of application of special military criminal punishments under the current military criminal legislation of the Russian Federation. The author pays careful attention to such types of military criminal punishments as the deprivation of military ranks and government awards, limitation in military service, confinement in a disciplinary military unit, and confinement in a guardroom. The author distributes punishments in two subgroups according to the specifics of their execution: related and not related to the social isolation of convicted military servants; analyzes the weaknesses of criminal law provisions concerning military criminal punishments as well as the precedents of imposing of such types of criminal punishments on convicted military servants. Moreover, the author formulates the suggestions for the introduction of amendments and additions in the current military-criminal legislation and in judicial practice of its application aimed at the improvement of the efficiency of special military criminal punishments. The paper highlights the necessity of the existence of detailed explanations in the acts of judicial interpretation regarding the practice of imposing of special military criminal punishments by courts. Additionally, the author criticizes the incentives and attempts both of the scientists and certain government institutions aimed at the exemption of special military criminal punishments from the RF Criminal Code as well as the abolishment of special institutions dealing with their execution as unclaimed and needless. The author substantiates his position by the analysis of scientists’ opinions and official statistical and other data on the activity of courts and institutions executing punishments related to the military servants.
14-19
20-21
THE CONCEPT OF EVIDENCE FORMATION IN VIEW OF THE ADVERSARIAL PRINCIPLE AND THE PROSPECTS FOR ITS DEVELOPMENT
Abstract
The relevance of the study is caused by the theoretical and practical significance of the concept and the procedure of evidence formation in criminal proceedings in view of the adversarial principle. The paper considers the scientific concept of evidence formation and the prospects for its development in the context of introducing an investigative judge figure into criminal proceedings. The concept of evidence formation appeared in the period of Criminal Procedure Code of the Russian Soviet Federative Socialist Republic, naturally reflected the needs of the practice and corresponded to the idea of evidence as the information about the circumstances relevant to a case, embodied in the legally provided form. Obtaining such information and giving it a procedural form belonged to the exclusive competence of the preliminary investigation bodies, therefore only the information obtained and prepared (formed) by the preliminary investigation authorities was submitted to the court as evidence. The information received and presented by other participants in the criminal proceedings was not recognized as evidence. The adoption of the Criminal Procedure Code of the Russian Federation in 2001, based on different principles, highlighted the apparent contradiction between the concept of evidence formation and the principles of competitiveness and independence of the judiciary, since the materials formed by one of the parties, the prosecution, are important for the judicial evidence. This circumstance strengthened the arguments of the opponents of the evidence formation concept and gave rise to the proposal to revive the figure of a judicial investigator in the Russian Federation or to establish an investigative judge position, the competence of which should include the formation of evidence on the base of the sources submitted by the parties. In this regard, the possibility of revising the long-familiar ideas about the institutions of evidence law is being considered.
22-27
THE MODEL OF PROCEEDINGS IN CRIMINAL CASES AGAINST A DECEASED
Abstract
The relevance of the topic of this study is caused by the imperfection of the legislative regulation of the proceedings in a criminal case within the conditions of the death of a suspect or a defendant. The recognition of the provisions of paragraph 4 of part 4 of article 24 of the RF Code of Criminal Procedure of the Russian Federation and part 1 of article 254 of the RF Code of Criminal Procedure by the Constitutional Court of the Russian Federation to be non-compliant with the RF Constitution necessitated the amending of criminal procedure legislation. However, up to now, such changes have not been made, and the arrangements for criminal proceedings in a case against a deceased taking into account the possibility of participation of relatives of a deceased have not been settled. The study of criminal cases terminated on the basis of paragraph 4 of part 1 of article 24 of the RF Criminal Procedure Code showed that in the extraordinary majority of cases the investigation or consideration of cases on the merits was terminated after establishing the fact of the death of a suspect (accused) without establishing and examination of evidence of guilt of a deceased. The persons who might have been interested in continuing the proceedings in a criminal case have not been involved in it for many years, their attitude regarding the possibility of termination of a criminal case has not been clarified, they have not been informed about the decision. The foregoing made it possible to judge the need to form a model of criminal proceedings for a deceased. The paper has developed the key provisions of such a proceeding, the distinctive feature of which is the absence of a subject to be held criminally liable. Moreover, the authors substantiated the proposals on the procedure and forms of participation of close relatives of a deceased person or other interested parties in a criminal case, paid attention to the obligatoriness of participation of a defense attorney, and developed other proposals aimed at the formation of a model of special proceedings regarding the deceased.
28-33
LEGAL NATURE OF THE RELIEF FROM LEGAL LIABILITY
Abstract
The relief from legal liability as a theoretical and legal structure is poorly investigated. One of the controversial issues is the legal nature of the relief from legal liability; its analysis became the purpose of this paper. The author considered the relief from legal liability as one of the forms of implementation of positive legal responsibility, which is a possibility provided by law or agreement not to fulfill the offender’s obligation to suffer the adverse consequences in the case of violation of the law. Special attention was paid to the study of the relief from legal liability as a means of differentiation of legal responsibility. Based on the doctrinal developments, the author concluded that the relief from legal liability is a legal means of differentiation of legal responsibility of the second level, i.e. intra-industry, the result of which is the process of individualization of legal liability. When considering the relief from legal liability as a special form of legal incentive, the author notes that this institution is protected by the incentive rules of legal liability that approve and encourage the behavior of a person committed an offense without legal liability application. The paper conducted the analysis of delimitation of the relief from legal liability from the circumstances excluding legal liability for acts that are not illegal by virtue of express reference by the law and are recognized as socially useful. According to the results of the study, the author concludes that by its legal nature the relief from legal liability is one of the forms of implementation of positive legal responsibility, a means of differentiation of legal responsibility and a form of legal incentive.
34-37
CLASSIFICATION OF THE ADMINISTRATIVE LAW RULES AS AN ELEMENT OF MECHANISM OF IMPLEMENTATION OF RESPONSIBILITY FOR VIOLATION OF LEGISLATION ON STREET PROCESSIONS, MEETINGS, DEMONSTRATIONS, AND PICKETING
Abstract
The paper considers the theoretical issues of classification of administrative rules establishing the administrative responsibility for violation of legislation on street processions, meetings, demonstrations, and picketing. The authors give brief characteristics of each type of legal rules; provide the examples from current Russian legislation. In particular, the authors consider the following grounds of administrative rules classification: the subject of regulation (substantive – what is understood to be a procession, the definition of a meeting, street procession, picketing; the principles of administrative regulation of holding meetings and processions, etc. and procedural – establish the order (the action sequence)); the field of application (general – establish general rules in the area of legal regulation, special – impose limitations, and exclusive – establish special aspects of legal regulation of certain issues); the hierarchy (the definition of rules’ hierarchy according to the law superiority); the regulation method; the order form (regulatory and protective (regulate the relations or establish a prohibition on something); mandatory and optional (strict regulation or implementation at the parties’ discretion); guaranteeing and informative – according to the sphere of legal regulation); the action limit (territorial application (federal, regional or municipal level), duration (enactment, principle of retroactivity), and personal scope of application (applied to all persons, to particular persons); the composition.
The paper concludes that the mechanism of implementation of responsibilities for violation of the procedure of holding picketing, meetings, and processions involves all types of administrative rules. The norms regulating the responsibility for violation of rules of conducting meetings, picketing and demonstrations are contained both in special administrative legislation (Code of Administrative Offences, Administrative Procedure Rules) and in statutory acts of the related branches of law.
38-42
NEW TRENDS IN QUALIFICATION OF CIVIL-LAW RELATIONS AS THE OBLIGATIONS AND THEIR LEGAL EFFECTS
Abstract
The reform of civil legislation caused significant changes in the rules of the law of obligations and contract law. In the judicial practice and in civil law there is a tendency of a broad interpretation of the concept of obligation. Based on the analysis of innovations on representations and the relations arising during the conclusion of a contract, the author asserts that this approach is not justified. The representations can be given at any stage of the contractual process: completion, performance, termination. The representations are the specific information which is important while forming the intention to conclude a contract, to execute or terminate it. The representations are provided by civil liability measures. At the same time, civil liability is not limited to the breach of obligations. The author notes the versatility and diversity of pre-contractual relations, analyzes the forms and methods of the completion of a civil contract, new laws on the conclusion of agreements for negotiation, responsibility for the negligence of negotiations. The paper gives the critical analysis of the judicial practice and scientific literature on the issue that the representations and the relations arising during the negotiations when concluding contracts are binding. The analysis of the judicial practice showed that incorrect qualification of actions as obligations caused both the adverse consequences for the participants of legal relations and, in some cases, the illegal transformation of public legal relations into private legal ones. It should be noted that only in some cases at the pre-contractual stage of the contractual process obligations legal relationship can arise, for example, from a preliminary contract by virtue of which the parties undertake to conclude principle agreement in future.
43-47