THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES
The socio-economic situation in Russia over the past decades has undergone serious changes that could not but affect the health system. There have been prerequisites for the development of private medicine, which has been supported by the state. Currently, there is an increase in the share of medical services provided on a paid basis. Widespread private practice, covering the chronological period of the Russian Empire, was interpreted by the authorities in the Soviet period as a relic of the capitalist system, contrary to the basic principles of proper health care organization. The Soviet period of Russian history appears to us as a chronological gap, that is, a time gap that characterizes the specifics of the linear existence of paid medical services.
In this regard, it seems relevant and timely to conduct research on the historical aspects of the formation and development of the legal status of consumers of paid medical services in the Russian Empire. In our opinion, such research is of both theoretical and practical interest. The first is due to the lack of development of this topic in the historical and legal literature. The second one will allow us to identify existing shortcomings in legal regulation in the sphere of public health protection based on the generalization of historical experience and formulate practical recommendations for improving the legislation of the Russian Federation in this area.
From the perspective of this work, we aim to assess the legal status of consumers of paid medical services in the XVIII – early XX century, comprehensively examining such elements of legal status as rights, freedoms, interests and duties. The article analyzes the influence of belonging of the inhabitants of the Empire to a particular social group on the formation of the legal status of consumers of paid medical services. For the first time, the main types of rights of consumers of paid medical services are separated from the regulatory legal acts in the field of healthcare of the Russian Empire and formed into a group.
Based on the results of a detailed analysis, we conclude that in the Russian Empire, the duties of consumers of paid medical services took priority over the rights, since it was believed that if the obligations were met, the rights would exist regardless of their formal Declaration. The analysis helps to understand the development of regulation of health ser-vices and allows us to draw historical parallels with the existing regulatory framework of the health care system in Russia.
CIVIL LAW, BUSINESS LAW, FAMILY LAW, INTERNATIONAL PRIVATE LAW
Settlement agreements in civil and arbitration proceedings are one of the most convenient and effective ways to resolve disputes arising between participants in civil legal relations. At the same time, within the framework of some civil disputes, the content of settlement agreements has significant specificity, and sometimes – due to the peculiarities of the subject composition and the merits of the case – they cannot be applied at all for the purpose of reconciling the parties. An example of such disputes are cases related to the recognition of the transaction as invalid and the application of the consequences of the invalidity of the transaction, the legal regulation of which is unique. The economic reasons for the invalidity of transactions predetermine the peculiarities of the content of settlement agreements in the relevant category of cases, limiting it exclusively to the procedure for fulfilling restorative obligations and obligations to compensate for losses. This circumstance is due to the fact that, from the point of view of the dynamics of civil legal relations, an invalid transaction introduces uncertainty in the ownership of property and the distribution of rights and obligations of the participants in legal relations, which can be eliminated only by restoring the situation that existed before the conclusion and execution of the transaction with a defect. The current civil law regulation in this part (Article 4311 of the Civil Code of the Russian Federation), which allows the conclusion of analogues of amicable agreements in cases of invalidity of transactions involving other, in addition to restitution, the consequences of the invalidity of transactions, in this regard, cannot be recognized as satisfactory. Contestation of the transaction by “another person specified in the law” (Article 166 of the Civil Code of the Russian Federation), as well as in the interests of third parties by specially authorized entities (procedural plaintiffs), the possibility of participation in a completed and executed transaction of public law entities determine the raising of questions about the possibility of concluding amicable agreements by these entities. It is noted that these subjects, as follows from the analysis of domestic civil, civil procedural, administrative and family legislation, being interested in resolving the case on recognizing the transaction as invalid and on the application of the consequences of its invalidity, do not participate in its execution, and therefore cannot determine the procedure for the fulfillment of obligations arising from it.
In this article, the authors define the criteria for public procurement. Based on the selected criteria, it has been established that government, municipal and corporative procurements today belong to the category of public procurement. An in-depth analysis of the branches of the legislation governing state and municipal procurement s, as well as procurements by certain types of legal entities, has been carried out. The authors draw attention to the state of constant reform, which is typical for public procurement, and the changes introduced into regulatory legal acts are not always successful from the point of view of the goal set by the legislator – improving legal regulation. A high degree of interest of the scientific legal community in the field of public procurement is noted. The content of the legislation on the procurement of certain types of legal entities is critically evaluated: the authors argue the position on the violation by the legislator of the rules of legal technology in the construction of the corresponding regulatory body. The prospects of legal regulation in the field of public procurement are determined. Studying the similarities and differences of the contract system of procurement and procurement of certain types of legal entities, the general orientation of the goals of these sectors of the law is revealed, provided that they are legally drawn up. It has been established that the content of both branches of the law is made up of similar institutions: a register of contracts (agreements), a register of unscrupulous suppliers (contractors, contractors), procurement planning, and the need to make purchases from small and medium-sized enterprises. Attention is drawn to the fact that professional standards contained in the field of continuing professional education take into account the labor functions of persons engaged in labor activities both on the basis of legislation on the contract system and legislation on certain types of legal entities. Based on the results of this work, the authors conclude that, despite the current differences in the legal regulation of these branches of legislation, it is advisable to consider the issue of the prospects for their unification. This is mainly due to the fact that the differentiation of the public procurement system develops negatively on the organization of activities of both customers and procurement participants.
LABOR LAW, SOCIAL SECURITY LAW
This article examines a complex of problems associated with the formation and the initial stage of development of the German model of social insurance. Initially, three models of such insurance have been proposed, then the main characteristics of the considered model have been highlighted. The article states that the German scientist Adolf Wagner played an outstanding role in the theoretical substantiation of this model. At the same time, the stages of his biography are briefly considered, allowing us to understand why exactly his role was so significant. Further, such important scientific phenomena for the formation of the system of compulsory state social insurance as Wagner's law, the principles of taxation substantiated by him, its use for redistribution of income, etc., are analyzed. Special attention is paid to the activities of the Union of Social Policy, which played an important role in the preparation of regulatory bases of future social transformations. The conclusion is substantiated that the formation of the German model of social insurance was the result of a long evolution of social relations from voluntary insurance at the expense of the workers themselves to optional, then optional-mandatory and, finally, mandatory social insurance based on the relative consensus of the leading social forces: political power, workers and some of the employers.
The article analyzes some problems of the formation of the conceptual apparatus of social security law. The authors support the thesis previously expressed in scientific literature about the lack of consistency in the use of certain concepts and definitions in this area, which is one of the key factors that impede the effective implementation of social security regulations. Based on the analysis of the use of the concepts “family”, “family member” in the social security legislation, it is concluded that there are defects in the design of the sectoral terminological apparatus. The Authors agree with the previously formulated point of view on the intersectoral nature of these concepts. A comparative analysis of the legislation on social security and individual provisions of family, housing and civil legislation, as well as other regulatory legal acts using these intersectoral concepts, is given, clarifications of the highest courts on this issue are considered. Based on the results of the study, a number of conclusions and recommendations are formulated, which are aimed at improving the sectoral legislation. In particular, the authors come to the conclusion that it is impossible to develop uniform concepts of “family”, “family member” for all branches of law, since the goals of legal regulation are different for each of them. In addition, the article analyzes the latest normative legal acts that secure monthly payments to families with children, examines the defects in legislative technology in connection with the use of the concepts of “family”, “family member” in them. The emerging law enforcement and judicial practice in connection with the appointment of these monthly payments to citizens confirms the authors' conclusion about the need to improve sectoral legislation, to ensure the systemic unity of the used conceptual apparatus. In conclusion, the authors point out ways to solve the problems identified in the article, among which, first of all, one should include the codification of legislation on social security, which has been repeatedly indicated in the scientific literature.
CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW
The article is devoted to theoretical justification for the introduction of criminal prohibitions on criminal assault in the illicit movement of goods, specified in article 2261 of the Criminal Code of the Russian Federation; the principles and bases of criminalization of smuggling in connection with her increased public danger. The analysis of the main components of social conditionality of criminal responsibility allows us to establish the validity of the introduction of new or existing criminal law norms. The article considers the public danger of smuggling (art. 2261 of the Criminal Code of the Russian Federation), as an obligatory sign of a crime, revealing its social nature and social conditionality of the criminal liability under article 2261 of the Criminal Code of the Russian Federation, depending on the extent and nature of public danger of the given kind of crimes. The social assessment of an act as a crime is based on its social danger, which is legally established in a normative legal act (Federal law) adopted in accordance with the established procedure and included in the criminal code of the Russian Federation. Attention is drawn to the fact that the public danger of smuggling is a threat to the foreign economic security of Russia. At the same time, there is a public danger of illegal movement across the customs border of the EEU (the customs border of the Customs Union within the framework of the EEU) of items specified in art. 2261of the Criminal Code of the Russian Federation is primarily concerned with causing harm to market economic relations developing in the EEU area, which forms a single customs territory, as well as causing material damage to the state in the form of unpaid customs payments, death or damage to particularly valuable wild animals and aquatic biological resources as contraband items. Smuggling as a negative social phenomenon includes the organization of activities related to violation of the customs and border regime. In the context of globalization and the development of market relations, smuggling is still the most common and most dangerous of customs crimes. Accordingly, the existence of a criminal law ban on its Commission remains socially conditioned, since it is a deterrent that allows the state to respond adequately to these types of criminal behavior.
The article is devoted to the problems of qualification of hijacking of an aircraft, a sea-going ship, or a railway train, provided for by Art. 211 of the Criminal Code of the Russian Federation. Despite the fact that Art. 211 has been present in the Criminal Code of the Russian Federation since its adoption, it should be noted that there is a lack of theoretical research on its analysis, as well as the existence in court practice of the difficulties of applying this norm (in addition, Federal Law No. 130 of May 5, 2014 -FZ in Art. 211 of the Criminal Code of the Russian Federation a new Part 4 was introduced, providing for liability for the combination of hijacking of a ship of air or water transport or railway rolling stock with a terrorist act or other terrorist second activity that, in the absence of specific explanations of the Plenum of the Supreme Court, has created additional challenges for law-qualification). This determines the relevance of the chosen topic. Analyzing the current legislation, the provisions of the Decree of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 No. 25 “On judicial practice in cases of crimes related to violation of the rules of the road and the operation of vehicles, as well as their unlawful seizure without the purpose of theft”, scientific positions and court decisions on these issues, the author comes to the following conclusions that seem interesting for theory and practice. Small boats of water transport relate to the subject of hijacking of a ship of air or water transport or railway rolling stock, and the commission of a crime under Part 4 of Art. 211 of the Criminal Code of the Russian Federation, and the associated terrorist act, requires qualification in the aggregate of Part 4 of Art. 211 and Art. 205 of the Criminal Code. Military aircraft and boats, submarines, etc.) are also the subject of a crime under Art. 211 of the Criminal Code. The of hijacking of an aircraft, a sea-going ship, or a railway train, as well as the seizure of such a ship or train for the purpose of hijacking, associated with the murder, assault on the life of a law enforcement officer, person conducting justice or preliminary investigation, a state or public figure are qualified in the aggregate of Art. 211 and Art. 105, Art. 277, Art. 295, Art. 317 of the Criminal Code of the Russian Federation. When of hijacking of an aircraft, a sea-going ship, or a railway train, as well as hijacking such a ship or train for the purpose of hijacking, committed with the use of violence dangerous to the life or health of the victim, or with the threat of such violence, in addition to item “c” of Part 2 of Art. 211 of the Criminal Code of the Russian Federation of additional qualification in parts 1, 2 of Art. 111, Art. 112, Art. 115, Art. 117, Art. 119 of the Criminal Code is not required. The of hijacking of an aircraft, a sea-going ship, or a railway train is often fraught with violation of the traffic safety rules and operation of the relevant transport provided for in Art. 263 of the Criminal Code of the Russian Federation: the deed is covered by Art. 211 of the Criminal Code, if the violation specified in Art. 263 of the Criminal Code of the Russian Federation expressed itself in theft; if not, qualification is possible in the aggregate of art. 211,263 of the Criminal Code.
The relevance of the work consists in the clearest definition of the subject of Prosecutor's supervision when the court considers materials on changing a convict’s type of correctional institution. The Prosecutor's office's supervision of the execution of sentences in places of deprivation of liberty should be aimed at unconditionally observing the rights and legitimate interests of persons serving criminal sentences, however, there are still serious problems in correctional institutions that negatively affect the implementation of the tasks and goals of criminal punishment. The reason for this is still cases of “superficial” and non-professional approach to the study of the personality of convicts who are subjects of legal relations that occur when their behavior changes (in a positive or negative direction) in places of deprivation of liberty. The Prosecutor's supervision and its activities in this regard are considered as one of the guarantees of the rights of convicts to improve their legal status, which fully implements the constitutional principle of respect for the dignity of the individual, humanism, justice and the rule of law. The materials of Prosecutor's checks, judicial practice, analysis of statistical materials, materials of dissertations, monographs and journals included in the international global scientific databases studied in the course of the research allowed us to determine the most effective ways to solve the problems considered. These include the need for direct, timely and step-by-step participation of prosecutors in this process, as well as high requirements for their professional and personal qualities. The selection and analysis of these factors allowed the authors to determine in detail the subject of the Prosecutor's activity in the mentioned study – it is an active and qualified activity of the Prosecutor (Prosecutor's supervision) in the field of criminal enforcement legislation, aimed at identifying, preventing (preventing) and eliminating violations of the rights and legitimate interests of convicted persons serving a sentence of imprisonment. The main research methods used were: analysis of theoretical and regulatory sources; comparison; generalization and analysis of documents. Their application allowed the author to analyze the subject in question in the relationship and interdependence of its constituent elements, their integrity, comprehensiveness and objectivity.
CRIMINAL PROCEDURE
The relevance of the problem covered is explained by the essence of goal-setting of any activity, which determines its final result and procedural structure. The direction of actions of state bodies in responding to crimes depends on it, as well as the arsenal of means provided for this to the law enforcement officer. The Criminal Procedure Code of the Russian Federation does not have a norm directly formulating the goal and objectives of criminal judicial proceedings. The legislator has applied such a non-standard category as “purpose”, which replaced the customary provisions that existed for more than 40 years on the tasks of criminal proceedings, enshrined in the previously existing code. Since the procedural law does not name the goals and objectives of the criminal process, the analysis of the target settings of modern criminal justice, the essence of the categories “purpose”, “goal”, “task”, their correlation and meaning is of particular importance. The Author analyzes the points of view of the processors of the pre-revolutionary and modern periods. The conclusion about the differentiation of the given concepts is made. Unlike the views of most scholars, the Author believes that purpose and goal are identical concepts, since they determine the final result of procedural activities. The goal is seen as the end result of the activity, and the task is determined by the goal and is considered as the result of its separate stage. Therefore, the Author conditionally correlates these categories as general (goal) and particular (task). There can be many tasks, and they are subject to changes under certain conditions, and the goal is always the same. The goal of any criminal process is determined by the need to streamline the dispute between the parties arising from the crime committed. The absence of clearly formulated elements of goal-setting prevents the assessment of the effectiveness of activities to resolve a criminal-legal conflict. The flaws in the legal structure of teleological norms of the current Criminal Procedure Code of the Russian Federation are noted. On the basis of a comparison of the views of procedural scholars, analysis of regulatory legal acts, the author came to the conclusion that the result of the criminal process should be the protection of the rights and legitimate interests of individuals, organizations, society and the state from criminal encroachments; protection of the individual from illegal and unjustified accusations, convictions, restrictions on his rights and freedoms. The tasks, despite their uncertainty from the point of view of legal regulation, constitute an established formula: quick and complete disclosure of a crime, the appointment of a just punishment to the guilty, education and prevention. The Author believes that the current structure of norms on the appointment of criminal proceedings does not reflect the absolute need to protect the interests of society and the state, and also does not define specific tasks as a guideline for the law enforcement officer to fulfill them in each criminal case in order to achieve this goal. Therefore, we propose our own legal structure of the norm on the tasks of legal proceedings, complementing the current provisions.
In the process of criminal proceedings, the determination of the procedural status of a person participating in a criminal case is the most important stage of the investigation. It depends on who the person will be recognized, what rights and obligations it will have, how actively it will be able to participate in the criminal case. The paper examines issues related to the determination of the procedural status of a person inclined to use drugs, draws conclusions about the need to recognize the inclined victim in the framework of the investigation of criminal cases under Art. 230 of the Criminal Code of the Russian Federation “Induction to the consumption of narcotic drugs, psychotropic substances or their analogues.” The article analyzes the arguments in defense of the provision on recognizing as victims those who are inclined to use drugs, and also provides arguments explaining what kind of damage is caused by the perpetrator to people who have used drugs and who have refused their use. The presently existing judicial practice on determining the procedural status of persons inclined to use drugs is presented.
The paper explains the reasons why investigators and prosecutors do not want to involve persons inclined to use drugs to participate in criminal proceedings on the side of the prosecution. Using the example of a judicial act that has entered into legal force, it is explained how the status of a victim in a criminal case can affect the sentence passed.
The situation with cannabis is considered in order to understand the harm arising from one-time use of narcotic drugs. Attention is focused on the attitude of society towards narcotic drugs made from hemp, and on the example of works in the field of medicine, the author describes the damage caused to a person when hemp-based drugs are consumed. At the same time, it explains why drugs inflict both physical and moral harm on a person.
Conclusions are formulated about the need for the incited person to participate in a criminal case in the status of a victim from the moment the investigator makes a decision to initiate a criminal case.
CRIMINALISTICS, FORENSIC ACTIVITY, OPERATIONAL AND INVESTIGATIVE ACTIVITIES
The relevance of the research topic is due to the existing problems of the implementation of methodological recommendations in the practice of investigating crimes against property. The article examines the theoretical basis for the construction of private methods for investigating various forms of theft (theft, robbery, extortion and fraud), which is traditionally their forensic characteristics. The elaboration of the investigation methodology based on the forensic characteristics does not contribute to the disclosure of the content of the material elements of the structure of the theft committed during its investigation. This allowed the author to draw a conclusion about the insufficient completeness of the forensic presentation of these crimes. The dominance of criminal law and criminological knowledge about a crime, contained in their criminalistic characteristics, is not a correct approach from the standpoint of reflecting the realities of criminal acts. The forensic characteristics of the types of theft under consideration, in the Author’s opinion, should be based on knowledge about the general elements of their material structure. In the future, information about the elements of the material structure as a result of the description of their features should form one of the main parts of the forensic characteristics of the crime. Knowledge of the elements of the material structure of a crime, combined with their forensic characteristics, creates a solid forensic basis for building private methods for investigating thefts committed by theft, robbery, extortion or fraud. Among the common elements in the structure of the crimes under consideration, the author singled out the subject of the crime, the object and subject of the criminal encroachment. When describing these elements, it is proposed to take into account their reflective features in the context of the implementation of typical methods of committing the analyzed crimes. It is also necessary to use the information contained in their forensic characteristics. The Author concluded that the information models of criminal acts that combine information about the elements of their material structure and data on the criminalistic characteristics of these crimes look the most rational. In the practice of investigating crimes, knowledge of the common elements of their material structure makes it possible to identify the presence (absence) of significant information on each of its elements. Correlation of the available information about these elements with their description in the forensic characteristics of the crime allows you to choose the direction of the investigation, put forward the appropriate versions and determine the set of tactical means necessary to verify them.
ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS
The article analyzes the provisions of the draft of the Code of the Russian Federation on Administrative Offenses, developed on the basis of the Concept approved in 2019 by the Russian Government. Attention is drawn to the fact that the Concept, for the first time in domestic practice, contains a provision stating that improving the institution of administrative responsibility will require work to transform it from a predominantly punitive-fiscal instrument into the institution of sentencing, subject to differentiated application taking into account the risk-based approach. Based on the analysis of particular compositions of the draft of the Code of Administrative Offenses, it has been concluded that the punitive-fiscal orientation in it remains. Suggestions have been made on possible ways to overcome this. Administrative penalties should only provide general and specific prevention. The economy of administrative repression should become an element of the administrative policy of the executive branch. After the entry into force of the new Code of the Russian Federation on Administrative Offenses, it has been proposed to conduct annual monitoring of its application, which will make it possible to identify the compositions that bring the greatest income to the budget. The problem of the existence of a profitable business on administrative responsibility is outlined. Attempts to introduce public-private partnership related to the provision of police assistance are assessed negatively. Based on Russian realities, it can be assumed that in practice this will lead to abuse by police officers and, as a result, to violation of human and civil rights and freedoms. Only in the future, the Russian police should gradually transform from a purely security structure focused on the use of state coercion measures into a structure that is largely service, providing citizens with specific services, in particular, providing them with police assistance when necessary. The idea is supported to recognize the “right to error” and “the right to forgiveness” for an administrative offender. It is proposed to implement it by expanding the possibilities of applying a warning as an alternative to such a punishment as an administrative fine, as well as by expanding the list of possible grounds for exemption from administrative liability. It is concluded that the adoption of the draft of the Code of the Russian Federation on Administrative Offenses does not look obvious.
At the present stage of the development of genetic engineering activities in the Russian Federation the question of the expediency of distributing powers between federal executive bodies and executive bodies of constituent entities is relevant. In this regard, the experience of Germany in securing the relevant powers in the field of genetic engineering for the executive authorities is considered, in particular, the powers of the federal executive authorities of Germany are examined to release and place genetically modified organisms, to monitor the impact of artificial microorganisms on human health and the environment, as well as administrative functions for maintaining information registers of information about modified organisms. The Author analyzes the powers of the German Federal Ministry of Food and Agriculture (German: Bundesministerium für Ernährung und Landwirtschaft – BMEL), the Federal Office for Consumer Protection and Food Safety of Germany (German: Bundesamt für Verbraucherschutz und Lebensmittelsicherheit – BVL) and other bodies. In addition, the Author has investigated the powers of the federal states of the Federal Republic of Germany in the field of genetic engineering work related to the use and production of artificial microorganisms and GM products. As an example, the competence of the authorized body of the federal state of Hesse – the Department of the Government of Hesse for genetic engineering – is considered. Analysis of the powers of the executive authorities of Germany in the field of genetic engineering made it possible to formulate conclusions and recommendations for streamlining the powers of executive authorities and organizations in Russia. As a result, proposals were made to improve public administration in the field of genetic engineering activities in Russia, including the need to entrust a separate authority with the authority for comprehensive regulation in the field of genetic engineering activities, as well as the inexpediency of currently providing executive the authorities of the constituent entities of the Russian Federation, the powers to exercise public administration in the area under consideration.
ISSN 2658-7610 (Online)