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Siberian Law Review

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Vol 17, No 4 (2020)
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THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES

438-454 1528
Abstract

The article deals with the dynamic aspects of legal consciousness. It is concluded that the traditional definition of legal consciousness as a set of emotions, ideas and feelings about the current and previously valid law was formed on the basis of the dominant materialistic concept as the ideological basis of knowledge in jurisprudence. Its use as a universal method determined the study of certain aspects of legal consciousness as an object of research activity, existing in the form of a reflection of the surrounding (legal) reality. As a result, the definition of legal consciousness in statics was formed, due to the analysis of individual external (materialized) signs of its manifestation (exteriorization). The existing lack of data on the peculiarities of the internal processes of the dynamics of legal consciousness was compelled to compensate for the study of mental processes and their corresponding parameters only on the basis of introspection. The article clearly demonstrates that this approach leads to various kinds of distortions, entailing errors in solving the fundamental problems of defining the phenomenon of legal consciousness, as well as a decrease in the quality of the practice of lawmaking and law enforcement. In order to overcome the gap that has arisen in theoretical and applied research, it is proposed to consider legal consciousness as a subject of scientific knowledge by constructing an integral theoretical scheme of its dynamics (flow) as a complex socio-psychological process. For this, an interdisciplinary approach is applied to the study of the dynamics of legal consciousness, on the basis of which a number of practical data from psychology, sociology, and cybernetics are synthesized. The definition of legal consciousness is formed on the basis of the decomposition of the concept into separate stages of legal consciousness with an analysis of their functional parameters. The main stages of the course of legal consciousness are recognized as the perception of the subject of legal regulation and its mediating legal norms with the formation of separate perceptual images, then – the corresponding perceptual activity with a certain centralization and cognitive processes with a possible result in the form of constructing mental schemes. The key parameters of legal consciousness are the generic-specific connection with consciousness, the absence of discreteness, as well as the specific formally-legally determined intentional orientation, temporality, coherence and tension of legal consciousness due to the subject's readaptation. Moreover, the target orientation, coherence and tension are largely predetermined by the methods and content of legal impact. As examples illustrating the proposed scheme of dynamics of legal consciousness, the phenomena of the so-called deformation of legal consciousness, approaches to the definition of subjectivity and legal personality, structural and substantive aspects of legal capacity and legal capacity, parameters of the subjective side of the offense, problems of professional legal consciousness and a number of other applied issues.

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

455-464 1630
Abstract

The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713].

 The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.

In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.

In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations.

 The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.

LABOR LAW, SOCIAL SECURITY LAW

465-474 726
Abstract
The article analyzes the problems of legal regulation of social services that arise in connection with the use of private law principles in the legislation on social services (contractual structures, the involvement of non-state providers of social services, the introduction of competitive principles, etc.). On January 1, 2015, the Federal Law of December 28, 2013 No. 442-FZ “On the Basics of Social Services for Citizens in the Russian Federation” entered into force, which made significant changes to the system of social services. In this regulatory legal act, a complex of legislative novelties was implemented, aimed at overcoming the crisis situation in social services. It was assumed that ensuring a competitive environment, including through the provision of social services on a contractual basis, would improve their quality, and the involvement of non-governmental organizations would solve the problem of the availability of social services. However, an analysis of the provisions of the current federal legislation and the legislation of the constituent entities of the Russian Federation revealed certain problems of legal regulation that impede the achievement of the goals set (violation of the continuity of legislation, the use of certain private law elements of legal regulation in the regulation of public law relations, etc.). Based on the results of the study, the Author concludes that the goals set for the legislator have not been fully achieved. The involvement of non-state providers of social services did not solve the problem of accessibility of social services. At the same time, at the federal and regional levels, a legal space has been created for “delegating” certain state functions to private organizations, the effectiveness of which raises objective doubts. The use of some private law elements of legal regulation (for example, the legal structure “contract”) does not serve the purpose of ensuring the guarantee of social services, but entails further “commercialization” of relations in the field of social services. The article also examines the experience of using so-called hospital-replacing technologies in certain constituent entities of the Russian Federation (creation of foster families for disabled people and citizens living alone). The Author comes to the conclusion that hospitalreplacing technologies can hardly be considered a really effective means of solving the problem of the availability of social services due to the low level of fees received for caring for single citizens and (or) disabled people.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

475-484 507
Abstract

Currently, housing and communal services as a specific form of socio-economic relations are most susceptible to criminal influence. The Author of the article examines corruption crimes in the field of housing and communal services (HCS) from the point of view of public danger. Corruption as a social and legal phenomenon continues to be a dangerous factor in the development of the housing and utilities sector. The article draws attention to the systemic nature of corruption crimes in the housing sector. It is noted that the majority of crimes in the housing and communal sector are stable corruption and are committed by officials, as well as by persons performing organizational, administrative and administrative functions at the enterprises of housing and communal services. The criminals have adapted to the new system of functioning of the housing and communal services and forms of control over its activities. They began to more often involve enterprise accountants, relatives and other close persons in their criminal schemes, thereby forming a stable criminal group in which all roles are carefully distributed and thought out. The Author analyzes judicial practice in corruption-related cases in the field of housing and communal services. The most typical ways of committing crimes in this area are shown. Attention is paid to violations related to the resettlement of citizens from hazardous housing. The issue of the organization of natural monopoly in our country, which reduce the effectiveness of the existing measures of state control and which directly affect the growth of corruption crimes, is investigated. Attention is focused on the deliberate obfuscation of the property rights of resource-supplying organizations and the withdrawal of income to offshore zones. The factors that contribute to the growth of corruption crimes in this industry are noted. On the basis of the study, the author concludes that the social danger of corruption crimes in the sphere of housing and communal services is conditioned by a high level of organization, selfish involvement of officials in the redistribution of funds in their favor, as well as the intricacy of schemes and methods of withdrawing funds from enterprises of housing and communal services.

485-494 1435
Abstract

The authors consider the theoretical and applied problems of preventing illicit traffic in drugs and psychotropic substances in Hungary in the legal and criminological aspects. The relevance of the study is determined by the fact that the Hungary's third drug strategy expires in 2020 (2013-2020), so a new strategy needs to be developed, but it is not yet known what guidelines it will have, what priorities will be offered to set in it.

The study was conducted with a view to considering the legal framework for the prevention of illicit traffic of drugs and psychotropic substances and the problem of its improvement in Hungary. To achieve this goal, the authors analysed statistics on drug use, types and quantity of drugs seized by law enforcement agencies for the last five years. The authors give a description of the drug situation, territorial features of drug use and a multilevel system of measures to counter illegal traffic in drugs and psychotropic substances at the national level. The authors pay special attention to the age and gender characteristics of drug use, which makes it possible to identify the most vulnerable groups, which should be supported by state preventive programs. The authors also analysed data on mortality from drug use and concluded that from 2010 onwards methadone and other non-opiate drugs predominated in death.

Based on the results of the study, current trends in drug use in Hungary were summarized. The results obtained are important for the development of an anti-drug strategy and the improvement of legislation, as well as for the prevention of law enforcement agencies, both Hungary and other European countries.

CRIMINAL PROCEDURE

495-513 906
Abstract

In November 2019, the world legal community widely celebrated the 125th anniversary of Professor M. S. Strogovich, who, according to his scientific colleagues and students, was a scientist who was “ahead of time”.

This article provides a retrospective and comparative analysis of the positions of M. S. Strogovich and his colleagues on certain problems of domestic criminal proceedings, in particular its pre-trial phase, in the context of the direct influence of the scientist's scientific heritage on the development of modern criminal procedure law. The Author of the article particularly interesting views of the scientist and his participation in discussions related to defining the essence and purpose of the preliminary investigation, the implementation of the functions of preliminary investigation in relation to criminal prosecution, the problems of implementation of the principles of presumption of innocence and the adversarial nature of pre-trial proceedings in criminal cases, and, finally, the General Manager of the “investigative case” in modern Russia.

M. S. Strogovich consistently adhered to the idea of the need to develop and strengthen procedural guarantees of individual rights, guarantees of justice, and this can be seen in this article. Thus, defining the essence of the criminal process as a system of actions of the relevant officials and the procedural legal relations that arise in connection with them, which in itself was a serious “scientific courage” of those years, M. S. Strogovich particularly defended the position that all participants in criminal proceedings are subjects of the rights granted to them and the duties assigned to them, and they should not be considered objects of unilateral power of officials. This idea has become widespread and generally accepted as the basic definition of domestic (Soviet and Russian) criminal proceedings.

The article analyzes M. S. Strogovich’s scientific steps on the conceptual turn from revolutionary-radical ideas about the construction of criminal proceedings to its classical canons and traditions of the Russian criminal process, On the basis of which the conclusion is made about the indispensable use of the scientist's legacy in modernьRussian procedural studies.

The research of M. S. Strogovich’s legacy carried out in the article will fully allow to rethink the modern system of criminal proceedings in a new way, can be used as a kind of key to finding solutions to law-making and law enforcement problems, for the further development of the national science of criminal procedure law.

CRIMINALISTICS, FORENSIC ACTIVITY, OPERATIONAL AND INVESTIGATIVE ACTIVITIES

514-522 505
Abstract
The modern capabilities of computers have returned interest in artificial intelligence technologies. A particular area of application of these technologies is pattern recognition, which can be applied to the traditional forensic task – identification of signs of forgery (imitation) of a signature. The results of forgery are differentiated into three types: auto-forgery, simple and skilled forgeries. Only skilled forgeries are considered in this study. The online and offline approaches to the study of signatures and other handwriting material are described. The developed artificial intelligence system based on an artificial neural network refers to the offline type of signature recognition – that is, it is focused on working exclusively with the consequences of the signature – its graphic image. The content and principles of the formation of a hypothesis for the development of an artificial intelligence system are described with a combination of humanitarian (legal) knowledge and natural-technical knowledge. At the initial stage of the study, in order to develop an experimental-applied artificial intelligence system based on an artificial neural network focused on identifying forged signatures, 127 people were questioned in order to identify a person's ability to detect fake signatures. It was found that under experimental conditions the probability of a correct determination of the originality or forgery of the presented signature for the respondent is on average 69.29 %. Accordingly, this value can be used as a threshold for determining the effectiveness of the developed artificial intelligence system. In the process of preparing the dataset (an array for training and verification of its results) of the system in terms of fraudulent signatures, some forensically significant features were revealed, associated with the psychological and anatomical features of the person performing the forgery, both known to criminalistics and new ones. It is emphasized that the joint development of artificial intelligence systems by the methods of computer science and criminalistics can generate additional results that may be useful outside the scope of the research tasks.
523-533 744
Abstract

Due to the specifics of crimes committed on the Internet and the need to involve competent persons with special knowledge in the field of information and computing technologies and information and computer technology in criminal proceedings, the appointment of computer and technical expertise is relevant in the investigation of most online crimes. Electronic (digital) information that is the subject of criminal encroachment or a means of committing a socially dangerous act on the Internet can be correctly collected, examined and examined only by specialists or with their assistance.

In scientific research on computer-technical expertise, the definition of its concept is not formulated, the distinctive features of this type of expertise are analyzed exclusively through the description of specific objects of such expertise. The article proves that the name "computer-technical expertise" is the most optimal term that semantically combines the study of both the device itself, that is, hardware, and its components, as well as system software, information data that includes various types of text and graphic documents.

The problems of performing forensic computer-technical examinations are based on objective and subjective reasons. Problems that do not depend on the expert's professional competence (objective) appear even before the start of production of the type of expertise under consideration. For example, failure to comply with the requirements of the criminal procedure form when collecting electronic documents or computer equipment during investigative actions prevents the expert from preparing a reliable, respectively, and acceptable conclusion. It is also important to take into account the continuous improvement of software and hardware used in criminal activities, which inevitably causes the need to modify and optimize the methods of conducting examinations.

The article defines the concept, principles of forensic computer-technical expertise, its types, objects of research and opportunities in the investigation and detection of crimes. Almost any handling of computer information requires the use of special knowledge. Therefore, the authors emphasize the possibilities of forensic computer- technical expertise in solving diagnostic and identification problems, analyze the problems of assigning and producing computer-technical expertise.

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

534-544 4692
Abstract

The word “unsubscription” has long been firmly used by Russian citizens, but this social phenomenon has not yet been studied in practice in legal science. In this article, the Author tried to fill this gap and analyze the nature of the replies of modern Russian officials, classify them, and identify the causes and conditions that determine them.

When preparing the article, we used methods of formal logic-comparison, description, classification, analysis, synthesis, etc., which allowed us to characterize the existing system of consideration of citizens from the position of its normative content. Among the private scientific methods, the formal-legal method used in the analysis of legal norms on consideration of appeals was used; logical-legal method, by which the content of legal norms in relation to the problem under consideration was studied; specifically, it is a sociological approach that was used in the analysis of statistical data related to the research problem.

The Author offers a classification of unsubscriptions depending on their content, the motive for writing, the circle of subjects, and the degree of multiplicity. Separately, the article analyzes formal responses with little content, sent from higher and Supervisory authorities, if the applicant applies to them after receiving a response from another authority and disagrees with it. On the example of specific unsubscriptions, we analyze options for evading inspections by law enforcement officials related to violations of the rights of citizens-applicants.

The author cites corporate rules of conduct, a desire to get rid of work, “defending the honor of the uniform”, excessive secrecy of activities, as well as the impunity of the official who prepared the response as reasons for the formal attitude to his responsibility for a comprehensive and objective review of appeals.

Take measures to prevent violations of the rights of citizens in the sphere of consideration of their applications, in particular, the introduction to the Code of the Russian Federation on Administrative offenses of article 5.59, not removed the relevance of the problem. As a rule, punishments under this article occur due to violation of the terms of consideration of appeals or even from evasion of giving a response to appeals, but the completeness and semantic load of the response itself are not studied. The author makes some suggestions for improving the effectiveness of interaction between people and authorities.

545-556 5271
Abstract
The subject of study in this paper are administrative-delict legal relations and the terms associated with this kind of relations. The purpose of the study is to analyze the nature of offences and administrative delicts. It is stated that the use of the term “delictum” it's been a certain evolution from private legal term in the sense of “delicta private” to the term, which can be used both in the sense of “delicta private” and value of “delicta publica”. The conclusion is that the term “delict” may be used in public relations and administrative legal use of the term “administrative delict”. Expanding the range of investigated administrative and delict relations, entails a change and the essential characteristics of administrative offenses, and also creates preconditions for formation of administrative-tort system of prevention of offenses, including not only administrative offences but also other offences that are not related to crimes and civil offenses. In this case, the responsibility should be named administrative and delict, which, in essence, will include a modern administrative and administrative-disciplinary liability. Depending on the nature of the administrative delict may be subdivided into administrative offense and administrative misdemeanor. The essential characteristics of an administrative offense should be upheld, and administrative misdemeanor must be attributed those acts which are now administrative and disciplinary misconduct. With this division of administrative delicts it is possible to realize a codification of administrative and delict legislation, i.e. the creation of Administrative-delict code of the Russian Federation. The work also made the assumption that procedural violations are treated as administrative delict. An attempt is made to distinguish between material legal relations in administrative law and administrative procedural legal relations. Concluded that you cannot mix administrative-tort legal relations, as a kind of material with tort and procedural legal relations. In turn, tort and procedural legal relations are an integral part of administrative and legal proceedings, and administrative delict production is an integral part of the administrative process. The methodological basis of the article is dialectical, formal logical methods, formal-legal method and method of interpretation of law.
557-565 1053
Abstract

The article provides a comparative analysis of administrative legal norms of the Russian Federation and Finland that regulate the participation of citizens in the protection of public order. The relevance of the chosen topic is determined by the fact that the human rights activities of law enforcement agencies, their importance in the fieldof public law enforcement, personal and public security is often unproductive, especially in the context of the global economic crisis, in which the functioning of law enforcement agencies alone is obviously not enough to protect human rights and freedoms and maintain public law and order. It is known that public tension in the state, including in Russia and Finland, increases sharply in emergency situations: during man-made disasters, epidemics, social crises, and terrorist activities. In such situations, the existence of public organizations whose activities guarantee the protection of public order and the elimination of negative consequences of emergency situations is extremely necessary. The Author considers the concept of public order, reveals its essence and content. The definition of the term “protection of public order” is formulated. It defines the legal regulation of citizens’ participation in public order protection in the Russian Federation and Finland. Common and similar features of such regulation are highlighted. The main legal acts regulating the participation of citizens in the protection of public order in Russia and Finland are analyzed in detail. According to the Author, strict centralization, as well as the lack of proper interaction of law enforcement agencies with society, is one of the key problems of enforcement and protection of public order in the law enforcement system of Russia and Finland. The issue of voluntary national teams functioning both in Russia and Finland is being considered. Attention is drawn to their specific features. In the end, the author concludes that at present, both for Russia and Finland, the issue of protecting citizens who take part in the protection of public order is a difficult one. It can be stated that in comparison with the Russian Federation, Finland provides a much smaller amount of guarantees for the protection of citizens who participate in the protection of public order.

566-574 471
Abstract

The article examines the issue of administrative liability of the lessee and the lessor for violations of fire safety requirements in the existing legal regime for leasing buildings (premises). The urgency of the issue under study is substantiated based, first of all, on the existing contradictory judicial practice. The article analyzes the normative legal acts of the Russian Federation that regulate rental legal relations and administrative liability for violation of fire safety requirements, examines specific law enforcement acts, including those of the Constitutional and Supreme Court of the Russian Federation, studies publications of foreign authors on similar issues. The position of a number of judicial authorities on the impossibility of changing the public obligations of the parties to fulfill the fire safety requirements established by the legislation of the Russian Federation by a lease agreement that regulates only their civil obligations is criticized. The study revealed the characteristic features of a lease agreement, such as: direct transfer of things for temporary possession and use, or for temporary use; the temporary nature of the parties' agreement; concessionality of the contract. Considered, proposed by a number of authors, the classification of fire safety requirements into capital (constructive) and regime (operational, functional) and their author's definitions of these terms, based on the results of which their artificiality and incorrectness are justified. The Author has developed a law-based dichotomous classification and corresponding terminology. The possibility of classifying all fire safety requirements into social and technical requirements has been substantiated. It is proposed to consider as social requirements a set of legal norms that establish the rules of human behavior, the procedure for organizing production and (or) maintaining territories, buildings, structures, premises of organizations in order to ensure fire safety. The requirements of a technical nature should include a set of legal norms aimed at protecting people and property from the effects of hazardous fire factors directly related to the structural space-planning features of premises, buildings, technological equipment installed in it, and engineering systems. The following conceptual thesis has been formulated – the lessor is obliged to fulfill at his own expense the fire safety requirements of a technical nature established for the leased property, and the lessee is obliged to maintain the property in good condition, bear the cost of its maintenance and comply with fire safety requirements of a social nature, unless otherwise provided law, other legal acts or lease agreement. The author proposes to reflect the issue of the division of administrative responsibility between the lessee and the lessor at the level of the Supreme Court of the Russian Federation, in the next review of judicial practice.



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