No 4 (2024)
- Year: 2024
- Published: 26.12.2024
- Articles: 5
- URL: https://vektornaukipravo.ru/jour/issue/view/45
Full Issue
Implementation of the principle of unity of judicial practice in Russian court proceedings
Abstract
Recently, in law enforcement practice, one can increasingly frequently encounter court viewpoints contradicting the norms of substantive and procedural law, which gives rise to an objective necessity of studying and understanding the causes of this phenomenon, as well as developing ways to improve the level of justice in the Russian Federation. The author considers the principle of unity of judicial practice as one of the means, the use of which can neutralize the deviations of courts in the uniform interpretation and application of legal norms. This paper analyzes the key viewpoints existing in the procedural law doctrine, as well as the provisions of the current legislation and numerous judicial practice on the existence and consolidation of the principle of unity of judicial practice. The author gives his own definition of the principle of unity of judicial practice and distinguishes it from the concept of judicial practice uniformity, which acts as a tool for implementing the fundamental principle under consideration. The conducted study allowed concluding on the existence and general binding nature of the principle of unity of judicial practice. Summing up the results of the conducted study, the author substantiates the need for comprehensive legislative changes in order to improve the level of justice in the Russian Federation. In particular, the author proposes to establish directly and consolidate in certain norms of procedural legislation the generally binding nature of provisions contained in resolutions of the Plenum of the Supreme Court of the Russian Federation, resolutions of the Presidium of the Supreme Court of the Russian Federation, and decisions of the Constitutional Court of the Russian Federation. The introduction of such changes will allow improving the quality of Russian justice, ensuring to a greater extent the principles of the rule of law, equality and adversarial nature of the parties in legal proceedings, as well as increasing the level of stability, fairness, legal certainty and predictability of justice in the Russian Federation, and reducing the burden on higher judicial authorities.
7-13
Pre-trial criminal proceedings: concept, essence, content and structure
Abstract
The paper presents a critical analysis of the current legal regulation of the first part of criminal proceedings indicated in the law as pre-trial proceedings. Having analyzed the legal and regulatory concept of pre-trial proceedings and the types of criminal-procedural activity that make up its content – preliminary investigation and criminal prosecution – the author proposes to enshrine the law enforcement orientation of pre-trial proceedings and its focus on the formation of state prosecution through the investigation and disclosure of crimes. This determines a new understanding of the pre-trial part of criminal proceedings as a set of administrative and investigative activities that are organizationally and functionally separate from judicial proceedings. Analyzing the content of the preliminary investigation and its close objectively existing connection with domestic intelligence activities, the author reveals the interaction existing between them in achieving common goals in the fight against crime, as well as the fundamental differences manifesting themselves in the methods of identifying the circumstances of the crime committed. If the body carrying out domestic intelligence activities solves a crime, i.e. receives actual information about the circumstances of the crime and the persons who committed it, then the preliminary investigation body identifies the circumstances of the crime through collecting a sufficient cumulative accusatory evidence in a way guaranteeing the respect for the constitutional rights and freedoms of the participants in the criminal process. The results of the study allowed determining the place and role of preliminary investigation bodies in the fight against crime, identifying the goals achieved by the investigation body in pre-trial proceedings, justifying their exclusion from the circle of participants in the prosecution and the need to single out one more stage in pre-trial proceedings logically following the preliminary investigation – the stage of criminal prosecution (accusation), within the framework of which the prosecutor’s accusatory activity in pre-trial proceedings begins through the formation of the subject of future legal proceedings – the state prosecution.
15-22
23-28
Concerning some legal consequences of accepting performance from a counterparty under a contract
Abstract
This study is based on those provisions of the Civil Code of the Russian Federation that are examples of the application in civil circulation of the rule prohibiting contradictory and inconsistent behavior of its participants. The author analyzed certain provisions of the Civil Code of the Russian Federation where the prohibition of such behavior is associated with the resolution of a dispute between the parties regarding the fact of conclusion of a contract (paragraph 3 of Article 432 of the Civil Code of the Russian Federation), its invalidity (paragraph 2 of Article 431.1 of the Civil Code of the Russian Federation), and the possibility of applying the right to withdraw from a contract (paragraph 5 of Article 450.1 of the Civil Code of the Russian Federation). The entire scope of interpretation and the entire sphere of practical application of these provisions of the Civil Code of the Russian Federation are beyond the scope of this study, so the author limited himself only to the issues related to the acceptance of performance by the party to the contract, which subsequently attempts to recognize the contract as not concluded, invalid, or to withdraw from it. When analyzing the specified provisions of the Civil Code of the Russian Federation, the author identified the conditions and procedure for their application, the distinctive features of each rule under study under different articles of the Civil Code of the Russian Federation, their relationship with each other, their general goal to preserve the contract supported by the general nature of the consequences of accepting performance under the contract. Conclusions were made that indicate the general opinion of the legislator on the bad faith of one of the parties to the contract, on its general attitude to the contradictory and inconsistent behavior of the party to the contract after accepting performance from the counterparty. The author also concludes that the legislator puts the fact of acceptance of performance under the contract first in the list of legally significant circumstances confirming the validity of the contract.
29-37
Criminal procedure form: boundaries of the necessary and sufficient
Abstract
The criminal procedure form is an integral part of the content of the criminal procedure itself and the object of the fiercest discussions in science, noticeably overloaded with ideological theses and arguments, sharp, sometimes excessively emotional criticism of the current law and of opponents proposing some changes and amendments to this law. The question of where the objectively necessary set of formal prescriptions of the law regarding criminal-procedural activity ends and obvious procedural and documentary excesses begin was chosen for a detailed analysis. The “formalization” of the Russian criminal process is a negative trend in its modern development. The example of the consideration of petitions by the investigator shows the presence of obvious procedural excesses provided for by the current Criminal Procedure Code of the Russian Federation. In the literature, the global “administrativization” of domestic justice in the first years of the Soviet regime and the shortage of qualified legal personnel loyal to it are named as the historical reason for this trend. Some authors argue that the actual elimination of both of these factors in subsequent history did not lead to a simplification of the criminal procedure form and mention examples of excessive “formalization”. Examples from the 1864 Charter of Criminal Procedure show that even before the Soviet period of Russian history, the relationship between representatives of power – the judicial investigator and the police, as well as between authorities and persons not vested with power – was always regulated in detail. As a result, a conclusion was formulated that the criminal procedure form is a necessary condition for the legitimacy of the authorities’ law enforcement, the personification of its application and responsibility for it. In this part, the detail of normative regulation and documentary registration cannot be considered excessive.
39-46