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Siberian Law Review

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Vol 16, No 3 (2019)

CONSTITUTIONAL LAW, CONSTITUTIONAL JUDICIAL PROCEEDINGS, MUNICIPAL LAW

266-269 493
Abstract
Despite the worldwide trend of recognition of human rights and freedoms, the human right to life is not constitutionally guaranteed in all national jurisdictions. This article examines the norms of the constitutional legislation of Russia and foreign countries on the human right to life. Methods of legal regulation of this right are considered by countries that recognize its constitutional value, and countries where the deprivation of human life is legally permitted, similarities and differences are revealed. The consequences of the practical application of legislative norms protecting human life are analyzed. The reasons for legal authorization of deprivation of human life are revealed. Giving the human right to life the status of an absolute right is recognized as the most effective legal way to ensure this right.

CIVIL LAW, BUSINESS LAW, FAMILY LAW, INTERNATIONAL PRIVATE LAW

270-275 382
Abstract
The paper deals with the problems of correlation between the rights and legitimate interests of a spouse who is a member of a limited liability company (LLC) and a spouse who is not a member of the company at the disposal of shares (part of the share) in the authorized capital of LLC, which is part of their jointly acquired property. These relations fall under the regulation of corporate and family law. Legislative reforms concerning the requirement of notarization of transactions with shares (part of the share) in the authorized capital of LLC from the position of their influence on the family legislation regulating the issues of disposal of common property of spouses are considered.
276-282 356
Abstract
Based on the analysis of the current legislation, scientific doctrine and law enforcement practice, the specific content of features characterizing autonomous institutions as subjects of business law is revealed. The affiliation of the autonomous institutions to the subjects of business law is justified through the implementation of their economic (entrepreneurial) activities, referred to in the current civil law as “income-generating activities”.
283-290 503
Abstract
He article is devoted to the actual problem of foreign adoption in international and national law, the legislation of foreign countries. The subject of research in this article is the norms of international law, Russian and foreign legislation governing the process of adoption of Russian children by foreign citizens. The Author considers the international experience, as well as the ratio of international and national law in the field of adoption. The сharacteristic features of the activities of judicial bodies and guardianship and trusteeship bodies in foreign countries are identified and described. The Author analyzes the provisions of the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Civil Procedure Code of the Russian Federation, the Family Code of the Russian Federation, the Federal Law “On the state data bank on children without parental care”, the Convention on the Rights of the Child, the Convention on Jurisdiction, Applicable Law and recognition of decisions on adoption and the Convention on the Protection of Children and Cooperation in Respect of Foreign Adoption, other domestic and foreign regulatory acts regulating the basis of the institution of international adoption. Based on the study, the Author concludes that it is necessary to control the competent authorities implementing the international adoption procedure, as well as to refer to the experience of foreign countries in creating a specialized court that deals with adoption cases and exercising control over the activities of the guardianship authorities, and according to in a number of states, which will allow the Russian legislator to help strengthen the position of the family institution in our country.
291-296 360
Abstract
In this article the questions of subject structure of family members are considered, the main legal signs of family members of the owner are revealed and their contents are opened. The Author argues that if the owner has made a legally significant action to move a person into his dwelling as a family member (without reference to commercial hiring or gratuitous use), there is recognition by the owner of this fact, regardless of their mutual legal status (kinship, properties, etc.). Although it is advisable to create a rule that directly indicates how the corresponding will of the owner or his authorized representative should be issued.
297-302 434
Abstract
The article is devoted to the analysis of the essence of legal succession from the standpoint of the science of civil law. The Author proposes to consider this category to be a legal relationship of a general type. Approaches to the definition of the content of the category «legal relationship» are considered, and the differences between general and specific legal relations are analyzed. The article reveals the elements of legal relationship of legal succession of general type: subjects, object, content. The question of the object of legal relations of succession is considered in the context of a more general question of the object of civil law, civil relations and civil turnover. It is established that the content of the legal relationship of succession of the general type has a certain specificity due to the difference in the legal nature of General and specific legal relations. The situations in which on the basis of legal relations of a general type there are specific legal relations are presented. The features of the protection of the ability for legal succession are analyzed.
303-308 391
Abstract
In modern Russia, there is often a situation where people are registered in an apartment who once refused to privatize it in favor of another person or who did not participate in such privatization for some other reason, despite the existence of such a right. The apartment, built before the 90s of the previous century, at first belonged to state or municipal property, and then transferred free of charge to the property of the persons living in it in privatization order. In this article, the Author talks about the problems associated with the lack of legal consolidation of this right. The position of the courts of various instances regarding the legal status of these persons, as well as the grounds for recognizing them as having lost the right to use the disputed apartment, is examined. Options for improving legislation to address this issue are proposed.

LABOR LAW, SOCIAL SECURITY LAW

309-314 317
Abstract
Violations of the current legislation on social payments, which have become widespread in recent years, lead to significant budget losses. In part, this is facilitated by the lack of operational interdepartmental interaction of the subject-law enforcement officer with other state bodies that have significant information. Its presence at the law enforcement officer would allow to prevent illegal payments, to prevent plunder of budgetary funds. The Authors propose methods of preventive orientation, in particular, the establishment of additional conditions for obtaining maternal (family) capital, the systematization of legislation on social payments, the acceleration of the creation of a Unified state information system of social security with filling it with new features and functions.

LAND LAW, NATURAL RESOURCES LAW, ECOLOGICAL LAW, AGRICULTURAL LAW

315-320 350
Abstract
The article analyzes the theory and practice of e-democracy in the field of environmental protection in Russia, shows the potential for the introduction of environmental petitions and environmental voting, analyzes the practice of interaction between citizens and authorities on the websites of federal and regional environmental authorities of Russia. As a result of the study, the conclusion is substantiated that today in the activities of environmental authorities we observe only the first steps to create a system of electronic democracy, which include the possibility of obtaining information on the website of the authorities, as well as “unilateral interaction”, that is, the ability of citizens and legal entities to download from the website the forms of certain documents. At the moment, additional efforts are needed by the authorities to switch to bilateral electronic interaction, which will be an important step towards the personal involvement of all interested citizens in the process of making environmental management decisions.
321-326 420
Abstract
The Author of the article considers three subspecies of environmental damage: the damage caused to natural resources, damage to property and damage to the life and health of a citizen, establishes features of the recovery of each of these subspecies. Particular attention is paid to the problems arising from the recovery of environmental damage to life and health of citizens.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

327-332 546
Abstract
The article considers the issue of classifying degrees of criminal liability for commercial bribery, depending the bribe amount. It also analyses problematic qualification issues arising in connection of with determination of criminal liability for mediation in commercial bribery, taking into account the position of the executors of law. According to the Author, the absence of indication of liability for mediation in small-scale commercial bribery in Art. 2041 of the Criminal Code of the Russian Federation led to unreasonable decriminalization of such actions. The paper studies the issue of possible application of compliance investigation procedure in solving the question of criminal liability for mediation in small-scale commercial bribery. On the basis of the research conducted by the Author, a suggestion is made regarding the need for amending the criminal law providing for liability for commercial bribery and mediation in it.
333-339 509
Abstract
The article deals with the issues related to the study of the practice of execution of criminal penalties without isolation of convicts from society. Special attention is paid to the analysis of problems of definition of malicious evasion from punishment serving. Within the article various points of view of scientists stated in the special literature concerning the legal nature of the studied problem are investigated, activity of criminal and Executive inspections and judicial practice about replacement of an unserved part of punishment by a more severe type of punishment to maliciously evading from serving criminal sentences without isolation of condemned from society is analyzed. The General criteria of malicious evasion from serving of punishment are revealed, the point of view of need of an exception of concept of “malicious evasion” from the criminal and criminal executive legislation is formulated, having left only “evasion from serving of punishment” and to fix in the criminal code signs of this evasion. It is offered to criminalize cases of evasion from punishment serving, as independent structure of crime with purpose of new punishment.
340-345 402
Abstract
The article considers the practice of implementing provisions of the Federal Act No. 182-FZ "On the Foundations of the Offenses Prevention System in Russian Federation" by district police officers, which are the primary element in law-enforcement preventive work. The research was conducted with using specific sociological methods. Significant shortcomings and loopholes were identified in the organization and content of district police officers’ working that leads to failure of the practical effectiveness of the Federal Act No. 182-FZ, aimed strengthening the social functions of the police and prioritizing crime prevention measures in criminal policy.
346-351 406
Abstract
The Author of the article considers the problematic issues of the subjective side of the corpus delicti of the legalization (laundering) of money or other property acquired by a person as a result of his committing a crime under Art. 174.1 of the Criminal Code of the Russian Federation. Focusing on the objectives of the composition, the Author, in terms of civil law, considers the legal possibility of imparting a lawful type of possession, use and disposal of money or other property acquired by criminal way, using the methods specified in the Resolution of the Plenum of the Supreme Court of July 7, 2015 №. 32 “On judicial practice in cases of legalization (laundering) of money or other property acquired by criminal way, and on the acquisition or sale of property knowingly obtained by criminal way”. Having considered the value of the powers of possession, use and disposal, the Author comes to the conclusion that legalization (laundering) is possible only through the implementation of such actions, as a result of which evidence will be created justifying the legal nature of the origin and possession of the property acquired by criminal way, equated with the presence of the guilty right of ownership.

CRIMINAL PROCEDURE

352-358 419
Abstract
The study of the features of legal assistance in the criminal process as a comprehensive legislative and scientific category allowed the Author to determine the classification grounds and distinguish four of its main types: legal assistance provided by state criminal justice bodies and their officials; qualified legal assistance provided by lawyers and legal advisers; legal assistance provided by close relatives or other persons who are participants in the criminal process; legal assistance provided by authorized persons who are not subjects of criminal proceedings.
359-363 504
Abstract
The article is devoted to the consideration of the problem of the legality of the prosecutor’s refusal to accuse them at the stage of preparing a criminal case for trial. From the point of view of theory and practice, the Author analyzes the possibility and expediency of the prosecutor’s refusal to accuse at the preliminary hearing, as well as some procedural issues arising at this stage when the criminal case is returned to the prosecutor to eliminate violations of the criminal procedure law. The Author comes to the conclusion that the prosecutor’s refusal to accuse at this stage is not only possible, but also fully meets the objectives of his activities as a guarantor of ensuring the rights and freedoms of citizens involved in the criminal justice sphere, as well as setting the criminal process as the basic principle. Nevertheless, there are still legislative and law-enforcement problems associated with the participation of the prosecutor in the preliminary hearing, which require reflection and resolution.
364-368 543
Abstract
The article describes the features of the modern criminal procedure of Mongolia, which consist in the absence of the stage of initiation of criminal proceedings, confluence of a decision of initiation of criminal proceedings and decision about prosecution as an accused, in existence of uniform termination procedure of investigation of the criminal cases subject to termination or referral to court. Comparative legal analysis of rehabilitating grounds for termination of criminal case (criminal prosecution) is carried out. The content of criminal procedural activities at the end of the investigation is considered. The procedure for appealing against decisions on termination of the criminal case is researched. It is characterized by a lack of judicial control in pre-trial proceedings in Mongolia. The procedure and law enforcement practice of realization of the right to rehabilitation is analyzed. The conclusion that departmental regulation hinders its implementation is made. The Authors state that the procedure for termination of the criminal case provided by the Criminal procedure code of Mongolia contains fairly extended guarantees of establishing the truth. The normative regulation completely excludes multiple transfer of the criminal case from the police to prosecutor in the event of discrepancy in the assessment of the qualification of the crime and the completeness of the investigation. The absence of a procedure for the termination of criminal prosecution due to non-involvement is a serious drawback of Mongolian legislation. In general, the mechanism of termination of the criminal case in the criminal procedure legislation of Mongolia is conceptually more consistent and logical, but in terms of elaboration of procedural mechanisms is much inferior to Russian legislation.

CRIMINALISTICS, FORENSIC ACTIVITY, OPERATIONAL AND INVESTIGATIVE ACTIVITIES

369-374 505
Abstract
The investigation of robbery, in view of its dynamism, temporary and informational deficiency, requires from the person conducting the investigation high professionalism based on a deep theoretical knowledge of the laws governing the commission of such crimes. The analysis of typical flaws of the results of inspections of the scene of the incident on the facts of robberies committed in open areas, allowed us to formulate the optimal algorithm for the actions of the investigator to organize and conduct an inspection of the scene, taking into account the tactical and forensic features of this investigative action.
375-381 397
Abstract
The article presents the issues aimed at the implementation of the requirements of the criminal and criminal procedure laws on the study of the person who committed the crime as an integral system of its interrelated properties, qualities, features. Along with the identification of sources of relevant information and the use of certain methods of its study, an important component of the activity under consideration is the definition of ways of collecting characterizing information.The article describes the semantics of the word “method”, examines the use of this method of studying the identity of a minor who committed a crime, as the production of interrogation. The Author highlights the problem of insufficiency and (or) unreliability of information about the identity of the juvenile brought to criminal responsibility, including those obtained during interrogation and confrontation. Possibilities of application of methods of conversation and supervision for the purpose of studying of the personality of the teenager at production of his interrogation are revealed. It lists the subjects who may have a particular set of information about the perpetrator of the crime, as well as a list of questions that must be put to them in the course of their interrogation.
382-388 385
Abstract
The article outlines some issues of using traces in the preliminary investigation and in the judicial review of a criminal case at the stage of judicial investigation. Traces of ascertainable events are most often used in the conduct of a preliminary investigation by the investigation and inquiry bodies. The article reveals the main approaches and principles of this activity. The possibilities of the efficient use of traces in the judicial investigation stage are separately studied and analyzed. Features and methods of such actions are very diverse and are constantly being improved. The relative one-sidedness of the approaches to this issue allowed to pay more attention to the requirements for the use of traces at the judicial stage.

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

389-395 380
Abstract
The subject of the research is the norms of the legislation of the Russian Federation on the State civil service of the Russian Federation, which determine the tools of the professional development of civil servants. The object of the study is the social relations related to the decision making on providing a civil servant with the participation in professional development activities. The Author of the article presents the analysis of concepts. The special attention is given to the legal basis of the civil servants participation in the professional development activities and implementation issues. Proposals to improve the civil servant professional development tools are formulated.
396-400 396
Abstract
The article considers issues of understanding by the administrative-legal science of legal justice of the law-enforcement activity of executive authorities, other public administration bodies. The Author defines the concept and highlights the requirements of legal justice of administrative law enforcement, draws a correlation of these requirements with the requirements of legality, validity, appropriateness of this activity.
401-407 3786
Abstract
Article 171 of the Criminal Code of the Russian Federation and Article 14.1 of the Code of Administrative Offenses of the Russian Federation establish public legal responsibility for conducting business activities without state registration as an individual entrepreneur or legal entity. Thus, the criminal legislation and the legislation on administrative responsibility provide for the adjoining compositions of unlawful acts, which have common features.The article analyzes competing compositions for all elements that form their structure. The Author concludes that the main feature that makes it possible to differentiate criminal and administrative responsibility for the act in question is the degree of its public danger, which is determined by the size of the income received or the harm caused.

CIVIL PROCESS, ARBITRATION PROCESS

408-416 314
Abstract
The article attempts to outline the boundaries of responsibility of legal representatives for the obligations of the legally incompetent, the procedural status of the legally incompetent and their legal representatives in civil and administrative court proceedings. The opinion was expressed that the duties of a minor defendant could be performed at the expense of his legal representative. A legal representative should also be charged legal costs.

TRIBUNE OF YOUNG SCIENTISTS

417-420 621
Abstract
The article considers the problem of the independence of the judiciary on the basis of an analysis of general theoretical approaches to the definition of the concepts of "judiciary", "justice", "court" at the present stage of development of the theory of law and the state. The Author puts forward and substantiates the idea that the judiciary is an independent type of power relations, the specificity of which is the exercise of power relations based on the judicial method. Appearing at a certain stage in the development of society in response to the urgent need for a peaceful resolution of disputes and conflicts, the judiciary as an independent social phenomenon can have both state and non-state forms. However, the problem of the implementation of the principle of independence of the judiciary is especially acute in its state form, which, in our opinion, is due to the contradiction between the arbitral nature of the judiciary itself as a mechanism for the implementation of law and the imperious nature of the state seeking to use it in its own interests.
421-425 371
Abstract
Economic and legal measures to stimulate rational environmental management and environmental protection on the basis of the current legislation of Russia are considered, their concept is given. The problems of calculating and collecting fees for negative environmental impacts are disclosed. The question of the necessity of dividing objects that have a negative impact on the environment into categories continues to remain debatable. The bill is analyzed on the introduction of the chapter “Environmental tax” in the Tax Code of the Russian Federation. Considerable attention is paid to state support of economic and other activities carried out in order to protect the environment, as well as economic measures to stimulate the rational use of natural resources and environmental protection of the subjects of the Russian Federation. The Author comes to the conclusion environmental protection and rational nature management can be ensured only by taking a set of organizational, legal and economic measures aimed at reducing the level of negative impact of human activity.
426-429 367
Abstract
The article presents an analysis of the legal status of the Maslikhat Chairman and Maslikhat Secretary under the laws of the Republic of Kazakhstan. In the framework of this study, the features of the role and position of these positions in the structure of the representative body of local self-government in the Republic of Kazakhstan were identified. The positions studied play an important role in the structure of the representative body of the municipality. In view of this, the Author has paid special attention to the powers and organization of the activities of the representative body. The Author analyzed the Maslikhat regulations which allowed to single out some groups of powers of the chairman and secretary. The Author analyzed the Maslikhat regulations which allowed to single out some groups of powers of the chairman and secretary. In this paper, we study in detail the theoretical issues of officials of the maslikhat’s chairman and the maslikhat secretary. The conducted study allows to conclude that the ratio of powers of the chairman of the maslikhat and the secretary of the maslikhat is uneven, in view of this, the Author has identified problems and suggested ways to solve them.

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ISSN 2658-7602 (Print)
ISSN 2658-7610 (Online)