No 4 (2019)

The paper deals with administrative justice as a form of judicial control over the sphere of public authorities’ activity and the important constitutional guarantee of protection of citizens’ rights from the illegal actions of state and public authorities. The history of this legal institute in Russia begins in the second half of the 19th century and goes through several stages of its development: tsarist (imperial, pre-revolutionary), Soviet, recent (from 1993 to September 2015), and contemporary (since 2015). The author analyzed laws and regulations of Soviet, recent, and contemporary periods having the main significance for the development of administrative justice in Russia; considered the historical characteristics of formation and development of this legal institute, which significantly influenced its contemporary form and content. The author analyzed the problems of administrative justice related to the absence of legislative acts until the present time in Russia establishing the concept, system, and structure of administrative procedures. To improve the efficiency of administrative justice and the Code of Administrative Judicial Procedure of the RF, it is necessary to implement significant legal regulation of the institute of administrative procedures and methods of adoption of administrative legal acts by public authorities as the legislation establishing legal procedure of challenging affirmative performance (negative performance) of public authorities is inseparably related to the procedure of implementing legal power by public authorities, to the principles and standards of public government implementation. The hardest part in the legal enforcement of the Code of Administrative Judicial Procedure is the issue of differentiation of cases, which should be considered under the rules of civil procedure, administrative, and constitutional legislation.

The current system of sanctions, including certain criminal penalties, as well as their subsystem in the form of property penalties is aimed at minimizing such negative phenomena in society as the annual quantitative and qualitative increase in the crime rate. However, the problem of sanctions, in general, and property sanctions in criminal law, in particular, is less studied compared to the problem of legal liability. The researchers discuss the types of criminal penalties, the correlation of the concepts of sanction and punishment, the existence of criminal law incentive sanctions, and the determination of special aspects of the pecuniary punishments. The issues of their classification and the relationship with the related legal categories, both at the general-theoretical and sectoral levels remain disputable. The paper analyzes the opinions of Russian scientists supporting the broad interpretation of the concept of punishment as a general-theoretical category equally acceptable to the representatives of various scientific schools. The authors emphasize that, although the criminal code contains the concept of punishment, this concept can not meet the need of the study of punishment as a system. The authors prove the necessity to define legal punishment at the institutional level as a complex inter-branch institute (legal responsibility sub-institute). The paper studies the relationship between such concepts as sanction and punishment. The authors conclude that the relationship between them depends on the levels at which the research takes place, and namely, the level of the system of sanctions and the punishment system; the formal level of certain sanctions and certain penalty; the level of defining sanctions and penalties as a legal consequence experienced by an offender. The authors study the pecuniary punishments in criminal law. The obtained data allow defining special aspects of criminal law pecuniary penalties.

The paper considers the issues of the evidential significance of the expert opinion. It explains how the specified characteristic of the examination depends on the argumentativeness of the expert opinion, the text accessibility of the examination for the perception of the criminal process participants who do not have special knowledge. In the conditions of adversarial proceedings, the expert should convince the entities evaluating his opinion of the reliability of the findings. The authors considered the expert’s interaction with other participants in criminal proceedings as a communicative activity. Verbal and non-verbal means of substantiation of the findings by the expert are considered from the scientific point of view of communicative pragmatics and the theory of argumentation. The paper reveals the prospects of introducing a technological approach into the practice of forensic examinations. The concept of forensic technology is interpreted as a system of operations, that is, rational actions of forensic experts for the optimal use of the resources at their disposal. Forensic technologies are designed to provide a reliable, scientifically sound and reasoned forensic examination result. Technologies of this type contain algorithms for generating the text of the expert opinion. The paper shows that the argumentative qualities of the examination are determined by the accuracy and consistency of the description, the completeness, and clarity of the presentation of the studied objects. In the structure of forensic technology, the authors suggest that the unit for compiling the text of the expert opinion should be expanded through formalizing the description of the studied objects. The ways of optimizing the text of the expert opinion are outlined. The requirements to the adequacy and completeness, relevance and reliability, objectivity and information content of the description of the object are formulated. The following requirements for the presentation of objects of the examination are justified: minimization of verbal means, elimination of ambiguous terms, and the accessibility for the perception of participants in legal proceedings. Recommendations are given on the naming the common features of the studied objects.

Draft amendments to the RF Criminal Code submitted to the RF State Duma and the suggestions to recognize minor crimes, not providing for the punishment in the form of imprisonment, as a criminal offense, raise a question in what procedural form the proceedings in criminal cases of the specified category will be conducted. The legislators imply that the inquiry in this category of cases can be carried out in the form of a simple or reduced inquiry. The use of a simple inquiry when investigating criminal cases of this category is in no doubt but the use of a reduced form of the inquiry on crimes recognized as a criminal offense is questionable. The paper discusses the necessity to improve the pre-trial proceedings regarding the possible introduction of the concept of “criminal offense” into the Russian criminal legislation and qualification of crimes not posing a high risk to the public as the cases of specified category. The paper proves the necessity and social significance of introducing the protocol form of inquiry in the cases of minor crimes, which it would be advisable to qualify as a criminal offense, into the Russian criminal proceedings. Referring to the history of Russian criminal procedural law and modern European law, the author proves the conclusion that the conduct of inquiry in cases not posing a high risk to the public in the protocol form is timely and appropriate, especially if the concept of “criminal offense” will be introduced into the criminal law. In this regard, it is necessary to validate the inquiry form formerly existed in the criminal procedure legislation of the RSFSR and the RF and existing in the European criminal procedure - a protocol form of investigative actions.

The paper deals with the issues of origin and sustainable historical development of the trial by jury in the English system of laws. The study shows that particular features of ancient judicial institutions, for example, Heliaia, can be found in the contemporary trial by jury. The authors substantiate the thesis that the trial by jury began to develop in England in the period of its conquest by Vikings, but the fundamental principles of the trial by jury have national origins and were established in the earlier period. The paper states that the Great Charter enacted in 1215 and declared the right for courts of peers played a big role in the further development of the trial by jury. The authors admit that the trial by jury in its current forms began to form in the XV century when the function of jurors has completely changed - from evidence in a case to the solution of the case upon its merits. By the latter half of the XVII century, the independence of jurors when rendering a verdict was completely recognized: the landmark decision was made that the jurors cannot incur punishment for their verdict even if the verdict is inconsistent with the judge’s ideas or the evidence in the case. The study shows that in the XVII century, the functions of two self-dependent collegiate organs in the trial by jury were finally dissociated. The jurors began to resolve the questions of fact and the crown judge - the questions of law. The paper analyzes the organizational framework of the functioning of contemporary trial by jury in Great Britain: requirements and limitations for potential jurors, the formation of lists of jurors, the right of the juror rejection motion. Moreover, the paper presents a brief review of the procedural forms of activity of the English trial by jury at present.