No 4 (2022)
- Year: 2022
- Articles: 6
- URL: https://vektornaukipravo.ru/jour/issue/view/33
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Description:
Published 30.12.2022
Full Issue
The problem of termination of continuing contracts under the Russian law on the example of a lease agreement
Abstract
The paper studies the problems of the lack of legislative distinguishing between the mechanisms of termination of the continuing and one-time contracts using the example of a lease agreement. The problem has become especially relevant in the context of the COVID-19 pandemic, when the law was faced with the fact that a party could not perform a contract, but could not withdraw from it either. This situation led to a considerable misbalance in the relations of the parties, especially entrepreneurs who have concluded a term contract for the period of more than five years. According to the authors, the continuing contract termination may be relevant both in the event of a pandemic and in many cases when judges refuse to apply Article 451 of the Civil Code of the Russian Federation, which is scarcely used in practice, however, it is the text of this norm that potentially involves the possibility to terminate continuing contracts. The authors substantiate the necessity to include in the current legislation the norms on the differentiation of the continuing and one-time contracts termination using the example of a lease agreement. The paper describes the experience of Germany, analyzes the judicial decisions, which in some cases led to an unfair distribution of risks. The authors propose a draft article on the termination of a continuing contract, as well as a solution to possible problems that may be caused by the adoption of this article. The authors conclude on the necessity to include in the current legislation the rules for the continuing contracts termination. At present, the only way to eliminate this problem is to specify relevant provision in a contract.
5-11
On the legal regulation of recognizing inadmissible the evidence in administrative violation cases
Abstract
Evidence is vitally important in the proceedings on administrative violation cases, which allows identifying the signs of the constituent elements of an offense and reaching the truth. In this regard, it is important to collect evidence in strict accordance with the norms of the law. The institution of inadmissible evidence serves this purpose. At the same time, based on a comparative analysis of the provisions of the Code of Administrative Offenses of the Russian Federation and the Criminal Procedure Code of the Russian Federation, the author concludes on the insufficiency of legal regulation of this institution in the current legislation on administrative offenses. The paper formulates two hypotheses that may cause this problem: the presence of a gap in the law (“real gap”) or the case of the legislator’s intentional silence (“imaginary gap”). The author emphasizes the possibility and necessity to regulate the relations associated with the recognition of evidence in administrative violation cases as inadmissible. It is stated that the importance of the institution of inadmissible evidence in the proceedings on administrative violation cases excludes the possibility of the legislator’s qualified silence. Based on the above arguments, the author substantiates the validity of the first hypothesis. While discussing the results of the study, issues requiring additional legal regulation are identified. The author proposes to include in the Code of Administrative Offenses of the Russian Federation a definition of the concept of inadmissible evidence, the additional legislative regulation in the norms of the Code of Administrative Offenses of the Russian Federation of cases of recognition as inadmissible of administrative offense protocols, the testimony of a victim and witnesses, as well as an evidence obtained during control and supervisory activities. In this regard, the author proposes supplementing the Code of Administrative Offenses of the Russian Federation with Article 26.2.1 “Inadmissible Evidence”, which disposition, to the author’s opinion, can be constructed based on a similar norm of the Code of Criminal Procedure of the Russian Federation, taking into account the specifics of administrative-delictual legislation.
12-17
Criminal-legal and criminological aspects of infanticide in the countries of the anglo-saxon system of law
Abstract
The paper considers the criminal-legal and criminological aspects of killing by a mother of her newborn child (neonaticide crimes). The urgency of the research is caused by the application of the experience of foreign schools in the domestic legal science. The scientific thought of the Anglo-Saxon legal school has achieved considerable results in the sphere of preventing such social phenomenon as neonaticide; however, in the domestic scientific literature, these achievements did not find proper representation. The paper covers the study of neonaticide in the Anglo-Saxon scientific literature. The authors summarize the results of the studies covering the issues of classification and prevention of neonaticide in Anglo-Saxon law. Based on the provisions of Anglo-Saxon law, the authors review the terminology of this phenomenon. The paper analyzes the issues of state prosecution in the cases of neonaticide. The authors note the multiplicity of interpretations of the elements of this crime; identify the contradictions in American and English judicial practice. The study shows that the Anglo-Saxon legal system pays attention to the psychological state of a parturient woman and other elements of the subjective aspect of a crime. Minimizing the severity of criminal punishment for the neonaticide crimes taking into account the psychological state of a parturient woman contributes to strengthening the criminal protection of the life of newborns. The definition of the situation of the commission of a crime, the sequence of actions of a guilty person when preparing and executing the infanticide is valuable for the domestic science. In the structure of the way of committing a crime, the authors specify the actions of causing fatal injuries to a newborn, show the differences of this crime from the abandonment of a child in a helpless condition. Other actions specific to a neonaticide crime are specified. The authors conclude that for the domestic criminology, measures used in the countries of the Anglo-Saxon law system are applicable. Preventive measures include wide social assistance to women of reproductive age. To the opinion of scientists dealing with Anglo-Saxon law, compulsory education of young women on the issues of sexual health is an effective prophylaxis direction. Such prophylaxis direction is also applicable in the domestic practice.
18-27
Care and diligence as the criteria for determining guilt or innocence in the contractual delinquency
Abstract
Identifying the grounds for the civil liability incurrence has always aroused a considerable interest both of the civilists and the practitioners. It is civil law, where the statutory provision that the absence of guilt is proved by a person who violated an obligation (paragraph 2 of Article 401 of the RF Civil Code) is of interest. Therefore, the presumption of guilt enshrined in civil legislation due to the established civilistic tradition cannot but attract attention and still remains relevant for the research. The paper studies the criteria of the state of innocence in breach of an obligation proposed by the legislator. Such a state is defined through the use of the terms “care” and “diligence” in the law. Since there are no clear definitions of careful and diligent behavior in the RF Civil Code, one can conclude from paragraph 1 of Article 401 of the RF Civil Code that the degree of care and discretion depends on the nature of an obligation and the course of events at which a person must take all measures available in the situation to perform an obligation properly. The criteria of the state of innocence in breach of an obligation become the subject of the research. The author of this paper attempts to analyze and consider point by point the wording of Article 401 of the Civil Code of the Russian Federation concerning the criteria for determining the innocence of a person who violated a civil obligation. Categories and terms analyzed in the paper are rather common in the law enforcement practice, so in the study, the author relies both on the provisions of the RF Civil Code and on legal acts on a given issue. As a result of the study of the specified criteria of innocence, the author concluded that their somewhat abstract and subjectively evaluative nature does not allow today to achieve uniformity in the understanding and application of this provision of civil legislation.
28-35
School shootings: criminal law investigation
Abstract
The problem of adolescent violence and the cases of violence in the school environment associated with the mortality are of the high-degree urgency and cause a wide public outcry. Mass murders involving firearms, when an attack is committed by the students and the victims are students or school staff, are of particular concern. An important factor influencing the spread of school shooting in Russia is the growth of availability and popularization of social networks among young people. However, the problem is not only in the common availability of the information about the ways of committing the crimes, but in the fact that for many adolescents, such acts of massacre become a way of solution to conflicts with classmates and teachers. The paper reveals the concept of school shooting and specifies its characteristic features. The authors consider school shooting both as a negative social phenomenon and socially-dangerous act violating the norms of criminal law. Based on the study of the most famous cases of armed attacks on educational institutions of Russia and the official statistics data, the authors analyzed their reasons and the specific responsibility measures applied to attackers. As the priority directions of school shooting counteraction, the authors name the restriction of arms in circulation, the improvement of safety in social networks, and the improvement of criminal legislation. Special significance in the struggle with this phenomenon, the authors give to early recognition of forthcoming attacks on educational institutions, especially preventing bullying among the students.
36-44
Some problems of classification of crimes committed with violence according to the Russian criminal law
Abstract
Crimes committed with violence are related to the trespass to a person, person’s basic benefits and freedoms (life, health, and physical integrity). The RF Constitutional Court emphasizes the duty of the state to develop measures to counter criminal violence. A criminal policy to counter violence, primarily sexual infringements against children, holds a specific place. Following these principles, the legislator strengthened criminal liability for a number of violent crimes. The paper analyzes the content of Articles 116.1, 117, 131, 132, 286, and 302 of the Criminal Code of the Russian Federation subjected to amendments and additions in 2022. The author places emphasis on the study of those criminal legislation innovations, in respect of which there are no experience in the scientific doctrine and explanations of the highest court. To form a conceptual apparatus, the author carried out the theoretical studies of scientific publications related to the topic of violent crimes. For the same purpose, the provisions of the explanations of the Russian Federation Supreme Court Plenum were analyzed. Moreover, the author examined the acts of the highest court for their compliance with the amended editions of Articles 131, 132, 286 of the RF Criminal Code. According to the results of the study, the author formulates the concepts of violent crimes and crimes committed with violence. The paper presents the proposals for the classification of crimes under Articles 286 and 302 of the RF Criminal Code in the event of a competition between them and the recommendations on the classification of crimes under Articles 131, 132 of the RF Criminal Code committed against minors and associated with serious or especially serious crimes against a person.
45-50