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Siberian Law Review

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Vol 15, No 2 (2018)

THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES

120-123 535
Abstract
Legal technique exists in the activities of both the legislator and the law enforcement official. The article considers the legal technique of the law enforcement officer, namely, the judiciary. At present, issues related to legal technique in judicial activity are becoming especially topical, since the effectiveness of judicial activity depends on the legal and technical means used in the administration of justice and on the level of professional training of the judicial body using these funds. In his research paper requirements for judicial acts are analyzed. In law enforcement practice, there are a number of problems associated with the legal technique of judicial acts. Thus, the authors identify violations of lexical rules for drafting judicial acts, violations of uniform practice, as well as the problem of the incompleteness of acts of the judiciary. The authors carried out a comprehensive analysis of the investigated phenomena, revealed their essence, identified problematic issues of legal technique in judicial acts.
130-136 282
Abstract
The article deals with the problems, relating to the independence of the judiciary branch in Russian Federation. The Author analyzes the statutory competences and powers of the qualification boards of judges, which play a key role in the implementation of personnel policy in the judiciary. According to researchers, the existing laws do not guarantee the independence of judges. The fate of judges is decided by the Chief-executive with the participation of his subordinates, but not by judges and the public, which makes judges dependent on the executive branch. This is a clear violation of the constitutional principle of the independence of judges. The article presents the positions of a number of legal scholars, who believe, that currently the competence and powers of the Qualification boards of judges are overstated and require adjustment. The article concludes, that it is necessary to amend the legislation of the Russian Federation, providing for the participation of representatives of the legal scientific community in the work of Qualification boards of judges.

CONSTITUTIONAL LAW, CONSTITUTIONAL JUDICIAL PROCEEDINGS, MUNICIPAL LAW

137-141 322
Abstract
In the article the Author investigates the institutional principles of environmental law - for example, the principles for the protection of Lake Baikal as one of the varieties of specially protected natural territories. The Author argues that the Federal law “On protection of Lake Baikal” should be supplemented by a separate principle, indicating that the Baikal natural territory is a protected area of international importance, which will also require amendments to the Federal law “On specially protected natural territories”.
142-147 272
Abstract
The subject of the Author’s publication is the work of the initiative group on holding a referendum in the city of Omsk in 2013-2014. Based on documents of administrative, representative and judicial bodies, the Author analyzes and derives specific rules that played a role in the appeal of citizens for the realization of the right to a referendum. It was concluded that the requirements of the federal legislation on referendum were exceeded in practice, that the list of issues not put to the vote without the consent of local self-government bodies was directly exceeded, that the concept of local issues was directly linked to federal legislation on local selfgovernment, and that the institution was limited in the current situation.

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

148-151 375
Abstract
The scientific article proves the necessity of legal regulation of relations connected with the use of virtual currencies (crypto-currency). The article examines the constituent elements of the definition of “virtual currency” (crypto-currency) from the position of the object of civil rights. The Author proposes to carry out the legitimation of virtual currency along the way of the object of civil rights and formulates the conclusion that the virtual currency belongs to other property. To construct a definition of a virtual currency, the following constitutive elements should be used: the assignment of a virtual currency to property, the means of payment by an undefined circle of persons, the main functional feature of a virtual currency is the ability to serve as a means of payment on a certain scale, however, this property is not electronic money. Thus, an author's definition of the considered definition of civil law is offered.
152-157 261
Abstract
The article is devoted to the analysis of separate signs of entrepreneurial activity of banks. The concept of entrepreneurial activity is considered, its ratio with economic and banking activity is shown. A special attention is paid to the analysis of bank risk. On the basis of the carried-out analysis the conclusion is drawn that banking activity is one of the most significant types of entrepreneurial activity on which effective implementation possibilities of further overcoming of an economic crisis depend. The article contains some legal positions of courts on relevant issues.
158-162 280
Abstract
The article is devoted to problems of the proving of illegal use of a trademark in the retail sale of goods in connection with the use of such evidence as a videotape of the acquisition of counterfeit goods as well as commodity or cash voucher. Based on the analysis of practice of consideration by arbitration courts of cases on disputes on protection of exclusive trademark rights identified general requirements that must be met by the evidence.
163-167 305
Abstract
The Author considers the process of recognition and enforcement of foreign arbitral decision on economic disputes in the Russian Federation in order to identify problems arising in arbitration proceedings in the performance of foreign arbitral decision. Characteristic features of application of the international multilateral treaties ratified by the Russian Federation and regulating process of recognition and enforcement of the foreign arbitration decision are allocated and described. The article analyzes other grounds for recognition and enforcement of a foreign arbitral decision, except for international treaties. The article substantiates the idea that the Russian arbitration practice in the category of cases specified in the article is in the process of development and improvement. On the basis of the research, the Author concludes that at present Russian arbitration courts often refer to the principle of international courtesy and the principle of reciprocity in considering the application of companies for recognition and enforcement of foreign arbitral decision in economic disputes. The issue of procedural features related to the provision of evidence to ensure the principle of reciprocity continues to be debated.
168-172 255
Abstract
The Author highlights some problems of the correlation of the legislation on auditing activity and the law on the contract system in the sphere of procurement with regard to holding an open tender for compulsory audit by a number of legal entities. There are violations of the rules of legal technology in the construction of terminological apparatus. The article deals with the issues concerning the correlation of private and public principles in the law on the contract system in the sphere of procurement of goods, works and services for provision of public needs. A conclusion is drawn on the complexity of the legal regulation of state and municipal purchases. The problem connected with the scope of the rules of the law on the contract system in the procurement sphere, which should be used in compulsory audit competitions, was investigated. The need to improve legislation is summarized.
173-180 498
Abstract
In this article, a comparative legal analysis is conducted of the institution of proprietary protection in Russia and foreign countries. In particular, certain provisions of the civil legislation of such states as Germany, France, Austria, Italy, Switzerland, Netherlands, Portugal and England have been explored. Along with the study of foreign legal systems, the prospects for regulating proprietary protection in the rules of Russian civil law are examined on the basis of a detailed analysis of the Concept of the Development of Civil Legislation of the Russian Federation and the draft of Federal Law No. 47538-6 “On Amendments to Parts One, Two, Three and Four of the Civil Code of the Russian Federation, as well as in certain legislative acts of the Russian Federation”. The authors consistently disclose the content of the rules on property claims, the delineation of the approach to protecting the proprietary of movable and immovable things, the possibility of investigating the legal basis of possession within the possessory process, as well as the limits of self-defense of possession. As a result of the conducted research, the authors concluded that it is necessary to secure the proprietary protection in the norms of the current Russian legislation after the elimination of the indicated gaps and contradictions.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

181-186 428
Abstract
The article is devoted to the problems of implementation of the legal status of prisoners sentenced to imprisonment serving their sentence in correctional coloniest. Such basic problems as control of convicts’ behavior, reasons for giving the right to reside outside the colony are depicted. The problems connected with changing the type of penitentiary facility for the convicts are also analyzed.

CRIMINAL PROCEDURE

187-191 382
Abstract
The article reveals the most effective tactical methods developed by science, forensic and investigative practices used in the interrogation of persons suspected (accused) of committing crimes against journalists in connection with their legitimate professional activities. Describes the issues needed to clarify during the production of the interrogation of these persons. Focuses on tactics to overcome resistance on the part of the interviewee and conflict situations emerging in the course of his interrogation. The conclusions made in the article indicate that the position of the interrogated person, her role in the Commission of the crime, as well as her psychological state, official position and relations with the victim preceding the Commission of the crime should be taken into account when preparing and conducting the interrogation of the suspect (accused) in the cases of the considered category.

CRIMINALISTICS, FORENSIC ACTIVITY, OPERATIONAL AND INVESTIGATIVE ACTIVITIES

192-199 373
Abstract
Federal Law No. 153-FZ of June 8, 2015 “On Amending Article 187 of the Criminal Code of the Russian Federation” changed the title of the article itself, expanded the subject of criminal assault, and substantially modernized the objective side of the criminal act. The article substantiates the need to develop the content of the subject of criminal assault and the method of crime as the most informative components of circumstances that are to be determined in cases of illegal circulation of payment instruments. On the basis of explanations of the highest judicial bodies of Russia, separate normative sources and modern research in forensic science, the content of the subject and method of the act of Article 187 of the Criminal Code of the Russian Federation.
200-205 365
Abstract
The process of investigating a crime requires the person conducting the investigation skills to properly focus their efforts to establish the circumstances to be proved. For each specific type of crime, this list is filled with specific content. In this regard, ensuring the completeness and comprehensiveness of the investigation of certain types of criminally punishable acts is possible by formulating a list of circumstances to be determined, which are understood to be more broadly the subject of evidence. The number of persons convicted annually of extortion is indicative of the prevalence of such crimes, and changes in the current legislation require specification with their consideration of the list of circumstances to be determined. In order to solve the above-mentioned problem, in the present work, on the basis of an analysis of the law enforcement practice and the legislation of the Russian Federation, the circumstances that are to be determined in the cases of the category in question according to the subject, the subjective side, the object and the objective side of the criminal offense under consideration are consistently formulated and outlined. Along with the above circumstances, which are subject to determination in cases of extortion, the issues related to the need to establish circumstances permitting delineation of the acts provided for аrt. 163 of the Criminal Code of the Russian Federation from related offenses, namely arbitrariness, robbery (art. 161 and art. 162 of the Criminal Code of the Russian Federation).

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

206-211 300
Abstract
The article is devoted to topical issues of administrative responsibility, stipulated by the Code of the Russian Federation on Administrative Offenses, for legal entities, for the use in the name and (or) in advertising of the words “stock exchange”, “trading system”, “trade organizer”, as well as words derived from them and word combinations. The authors, analyzing the judicial practice, the opinions of the founders of legal entities brought to administrative responsibility for this offenses, come to the conclusion that these offenses are in most cases committed unintentionally. It is advisable to legislatively exclude the possibility of registration of a legal entity by an authorized federal executive body at the stage of submission of constituent documents in the event that the words “stock exchange”, “trading system”, “trade organizer”, as well as words and phrases derived from them, are included in its name. In addition, the administrative fines provided for such an offense are disproportionate to the gravity of the administrative offense. This fact is confirmed by the absence of a unanimous opinion among judges on the fact of adopting a decision to award a fine to a legal entity in the prevailing legal realities.
212-221 509
Abstract
The article analyzes the elements of an administrative offense provided for by Part 1 of Article 14.1 of the Administrative Offenses Code of the Russian Federation. A detailed description of the object, the objective aspect, the subject and the subjective aspect of the composition of the specified offense is given; the most significant vacuum in its legislative consolidation, differences from the related composition of the crime are revealed. The author proposes specific measures aimed at improving the practice of applying the norms of the Administrative Offenses Code.

CIVIL PROCESS, ARBITRATION PROCESS

222-226 368
Abstract
The article is devoted to the study of legitimate interest as an object of judicial protection. Here are considered the guarantees of protection of this interest in administrative proceedings. As a result of the study of the legal framework, the author makes a number of proposals for the further improvement of legislation on administrative proceedings aimed at protecting legitimate interests.

TRIBUNE OF YOUNG SCIENTISTS

227-233 332
Abstract
The article is devoted to qualification and criminal-political assessment of the qualifying sign of petty bribery - the existence of previous convictions. It is concluded that the presence of the previous conviction is a sign of the composition that characterizes the special subject of the crime, and in its legal nature this sign corresponds to the concept of actual (or criminological) relapse and covers both the actual relapse of crimes as it is defined in art. 18 of the Criminal Code of the Russian Federation, as well as other repeated cases of petty bribery by a person who has a criminal record for taking bribes, giving bribes, mediating bribery or petty bribery. The conditions for the qualification of a crime under this qualifying criterion, the questions of its application in the conditions of the retroactive force of the criminal law are described. Suggestions are made to improve the legislative regulation of the relevant qualifying circumstances, to its wider use in the system of differentiating responsibility for bribery.
234-239 291
Abstract
The article explores the issues of the legal status of relatives and close relatives of the deceased victim in criminal proceedings. Examines the problems of determining the circle of persons who can transfer the rights of the deceased victim, their criminal procedural status depending on the cause of death of the victim. Attention is paid to some issues of content of the legal status of such participants in the criminal process. Various approaches to determining the legal status of relatives and close relatives of the deceased victim in legal literature have been analyzed, the positions of the highest judicial instances, as well as judicial and investigative practice, have been studied. The necessity of recognizing these persons as victims irrespective of the cause of death of the deceased is substantiated. The ways of improving the norms of the criminal procedural law have been worked out, the preconditions for adjusting the content not only of Article 42 of the Code of Criminal Procedure of the Russian Federation, but also of individual decisions of the Supreme Court of the Russian Federation have been formed.
240-244 386
Abstract
The article deals with the mechanism of protection of the right to freedom of conscience. It is concluded that securing the right to freedom of conscience is possible only if there are special (legal) guarantees. An attempt is made to identify the constitutional guarantees of the right to freedom of conscience in the system of legal guarantees of the right to freedom of conscience. In view of the existing problems arising in the definition of the system of legal guarantees of the right to freedom of conscience, recommendations are proposed for improving the mechanism for their provision in the Russian Federation in the current legislation.
245-250 234
Abstract
This article explores the institutions and forms of interstate cooperation in Australia. The Author identifies four main forms of such cooperation: cooperation in lawmaking, consultation and coordination of activities, interstate agreements and the creation of interstate bodies. Analyzing each form, highlighting the strengths and weaknesses, the author draws attention to the fact that cooperative institutions may both enhance federalism or mask centralization.

REVIEW

251-254 294
Abstract
The review points out the scientific assessment of the monograph. The monograph contains a detailed analysis of legal characteristics of civil servants and positions of the state civil service. It also outlines the significance of the rank and the principal elements of the assignment and preservation of class ranks. The research paper describes the problems of legal regulation of administrative procedures related to the assignment of state official class ranks based on the results of the qualification exam and certification.


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