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Siberian Law Review

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Vol 18, No 1 (2021)
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THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES

6-16 816
Abstract

 The Author proceeds from the fact that in modern political and legal realities, the most important social indicator of the legal culture of society is the state of legality, which contributes to ensuring the legal functioning of state and public institutions, guarantees of the rights and interests of the individual. The aim of the study is to analyze theoretical provisions regarding legality and law and order in the context of designating them as criteria of legal culture - signs on the basis of which it is possible to assess the formation of legal culture at the level of society.
The degree of scientific elaboration of the problems of legality and legal order in the works of Russian and Belarusian jurists of the Soviet and modern periods has been determined. This made it possible to establish the generic commonality of law and order as a basic theoretical setting, which manifests itself in considering them as different sections of the ordering of social relations. Legality is investigated as a principle, method and, at the same time, a mode of state-power activity. The conditions for ensuring the legal order establish the exact and unswerving implementation of legal prescriptions by all subjects of law, which characterizes their legal culture. The theoretical model of the mechanism for ensuring the rule of law and legal order is presented through the characteristics of its social and legal content, subject composition and institutional and functional structure.
The role of legal law and legal principles in ensuring the rule of law and legal order is shown. The subsystems of the institutional and functional structure of the mechanism for ensuring the latter – regulatory, state power, guarantees for the implementation of legal provisions – are analyzed. The  political, legal, organizational and scientific principles of the functioning of  the mechanism for ensuring the legal order are outlined. The following types of legal order are determined: civil, international, state (constitutional). Taken together, all types of legal order are interconnected, which reflects the universality of law as a social regulator, the importance of its principles. This  circumstance determines the legal criteria for the uniformity of legal  regulation of social relations, generally accepted international legal standards in the field of human rights.
The directions of improving the legal culture of society are determined by high-quality rule-making; effective functioning of all government agencies, primarily law enforcement agencies; implementation of social and legal guarantees of legality and legal order.  

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

17-29 512
Abstract

 Robotics and cyber-physical systems form an independent layer of social relations characterized by increased social danger. This circumstance predetermines the recognition of certain categories of robots as sources of increased danger. The pace of development of robotics and cyber-physical systems is a consequence of the exponential, almost explosive growth of interest in intelligent systems under the conditions of the 4th Industrial Revolution and the emergence of Industry 4.0., actively supported by the state’s policy of “universal digitalization”. The variety of robots, a high degree of adaptability and growing accessibility for the general population are a prerequisite for the “involvement” of robots in various areas of criminal
activity, up to the robots committing individual criminal encroachments on their own. As complex devices with technical, digital and energy components, robotics and cyber-physical systems are subject to processes
that can cause harm to various groups of social relations. The introduction of robotics and cyber-physical systems into industry, production and the military sphere is associated with significant risks of causing harm to various objects of criminal law protection. With the growth of autonomy, robotics  will steadily expand the spheres where attacks are committed with their participation. In this regard, it is required to develop mechanisms for criminal liability in the event of harm caused by artificial intelligence and robotics  systems that have a high degree of autonomy in decision-making. The criteria for requesting criminal law regulation of robotics have been determined. The main reasons for the emergence of criminological risks  associated with the design features of robots have been identified. Undoubtedly, the basis for criminal law is the category of social danger,  which at the same time ensures the conceptual unity of criminal law norms,  while simultaneously being a watershed that delimits them from other  branches of law. It is extremely important to determine the boundaries of  criminal law regulation, which are formed exclusively by the public danger of  certain acts with the use of robotics. Thus, it should be stated that the  current level of development of robotics and cyberphysical systems, as well  as their involvement in the processes of the life of society, necessitate the  creation of effective mechanisms of criminal law regulation. 

30-41 304
Abstract

 The article deals with issues related to the diversity of theoretical understanding of the concept of strategy, as well as the analysis of existing strategies for ensuring the criminological safety of minors. Special attention is paid to planning and forecasting the future, in particular, innovative forms of forecasting are being investigated, one of which is Foresight. The foresight ideology is based on modern developments in the field of forecasting, futurology, and strategic analysis. Unlike traditional forecasting, Foresight always implies the participation of many experts from all spheres of activity, to one degree or another related to the topic of a particular foresight project, and sometimes also conducting surveys of certain groups of the population (residents of the region, youth, etc.) who are directly interested in solving  the problems considered in the framework of the project. The result  of a foresight session, unlike other methods of forecasting and planning, is a  “map of the future” – a visually rich space that allows you to see as a whole  the entire subject area, the image of its future, as well as various ways and ways of achieving certain desirable and undesirable states and factors affecting the likelihood of the embodiment of a particular scenario. The article analyzes the activities of the state authorities of the Russian Federation at the legislative level, related to strategic planning. The historical aspect of the concept of “strategy” is investigated. An introduction to the  scientific circulation of the Author's concept of this term is offered. Under the strategy it is necessary to understand the art of managing public relations, based on careful organization and use of available means and forces in order to achieve an appropriate result. Special attention is paid to the analysis of the regulatory legal framework of criminological planning, designed to streamline the complex and multifaceted process of preventive impact on offensive behavior. Attention is drawn to the need to develop a strategic  document aimed directly at ensuring the criminological safety of minors. It  seems that this should be a Concept that addresses both general and specific problems in this area, as well as determining effective control by state bodies. 

CRIMINAL PROCEDURE

42-54 403
Abstract

 Traditionally, law is studied primarily as a means of regulating and protecting public relations. The article is an attempt to rethink this paradigm in relation to criminal procedure law, from the point of view of the fact that it is presented here as a means of influencing social conflict. The Author submits a critical analysis of the currently available few works on the stated  problem. In particular, he points out the inadmissibility of mixing such categories as “conflict” and “contradiction”, which results in an opinion about the benefits of conflict as a factor in the development of social systems, to which he refers to the system of criminal procedure relations. In contrast to the presented point of view, the article considers conflict as the least effective means of resolving social contradictions, and, therefore, one of the tasks of criminal procedure law is to minimize social conflicts in the field of criminal procedure relations.
The issue of the nature of social conflicts arising in the sphere of relations  subject to the influence of criminal procedure law is considered in detail. In his reasoning, the Author of the article proceeds from the fact that the basis of such conflicts is the conflict of goals, interests of their participants, as well  as the means used by them in their implementation. This allowed him to  identify three types of criminal procedure conflicts: conflict of goals, conflict  of interests and conflict of funds.
The criminal procedural conflict in the article is classified as a social conflict,  which distinguishes the Author's approach from the usual forensic view of this problem. Moreover, such conflicts also include interpersonal conflicts arising between participants in criminal procedural relations. In addition to  interpersonal criminal procedural conflicts, the article examines the nature  and social foundations of the conflict between society and the state, which  can be provoked by criminal procedure law.
In the study, criminal procedure law is viewed from a slightly different angle than it was before, namely, as a social tool for minimizing conflicts arising in connection with the application of the norms of criminal procedure  legislation. 

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

55-64 324
Abstract

 The regulatory standards of the legislation on the contractual system in the field of procurement and legislation on the protection of competition are provided with the protective norms enshrined in the Code of the Russian Federation on Administrative Offenses. Sometimes in the disposition of one protective norm, the requirements established by different branches of law can be combined. One such example is Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative Offenses.
In the legislation on the protection of competition, for cases of procurement of goods, works, services in order to meet state and municipal needs, there is a prohibition on the inclusion of goods, works, services that are  technologically and functionally unrelated to each other in one lot, if such an action leads to limit competition. The specifics of bringing persons to administrative responsibility under Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative Offenses for violation of this  prohibition in the scientific literature did not receive proper coverage. A  feature of the proceedings in cases of administrative offenses under Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative Offenses is the absence of definitions of the concepts of “functional communication” and “technological communication”. Uncertainty of concepts creates a situation where the border between illegal and lawful actions is very  conditional, which causes cases of unjustified bringing persons to  administrative responsibility.
Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative  Offenses also provides for administrative responsibility for the inclusion in  the description of the object of the procurement of requirements and  instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, appellation of origin of goods or manufacturer's name, requirements for goods, information, works , services, provided that such requirements entail a limitation of the number of participants in the procurement, with the exception of cases provided for by the legislation of the Russian Federation on the contractual system in the field of procurement. This prohibition is established in the legislation on the contractual system in the field of procurement.
An analysis of law enforcement practice indicates that in a number of cases, officials were brought to administrative responsibility without proving the conditions established in Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative Offenses that such requirements of the customer entail a limitation of the number of participants in the procurement.
According to the results of the study, the shortcomings of the text of the protective norm in Part 4.1 of Art. 7.30 of the Code of the Russian Federation on Administrative Offenses, proposals were made to amend the Code of the  Russian Federation on Administrative Offenses. The Author points out the  need for a normative definition of the definitions of the concepts “functional connection” and “technological connection”. 

CIVIL PROCESS, ARBITRATION PROCESS

65-75 343
Abstract

 Changes made by the legislator to Art. 333.40 of the Tax Code of the Russian Federation, in the part that determines the procedure for the return of the state duty when the defendant recognizes the claims, suggest the need for their scientific understanding, since they admit the existence of different approaches to solving a number of practical problems. This article is devoted to the analysis of the changed legal regulation and the  development of optimal ways to resolve some issues related to the grounds  and procedure for returning the state duty to the plaintiff from the federal budget when the defendant exercises the right to recognize claims in full or in part at various stages of the arbitration court's civil case.
The Author considers the following questions: how can the right to recognize a claim be exercised, what is the external form of its expression; whether the state fee is subject to return from the federal budget if the defendant recognizes the claim after a ruling on the acceptance of the statement of  claim for production is made, but in case of non-fulfillment of the requirements on a voluntary basis; what are the grounds and conditions for the application of Sub. 3 P. 1 of Art. 333.40 of the Tax Code of the Russian Federation when deciding on the return of the state fee in case of recognition of the claim in the courts of appeal or cassation; whether the state fee is subject to return from the budget in the event of the plaintiff's refusal from the claim in part or partial recognition of the claim by the defendant (and how in such situations the amount of the state fee to be returned is determined); whether the state fee is subject to return from the federal budget in the event of an amicable agreement, if, according to its terms, the amount of obligations between the parties has been agreed in a smaller amount than the amount of the previously declared claims, and also if the parties have reached a condition on the distribution of expenses for paying the state fee. 

76-82 606
Abstract

 The article is devoted to the actual problem of the application of international treaties by Russian courts in the settlement of disputes. The legal positions of the judiciary, formed taking into account the norms  of international treaties, affect the content of national legislation. The subject of the research in this article is the norms of national and international law, which serve as the legal basis for the application of international treaties at the domestic level. The article deals with the provisions of the Constitution of the Russian Federation, federal legislation, in accordance with which the process of applying international legal acts in national courts is implemented. Practical experience is summarized by analyzing the actual  judicial practice, including the practice of arbitration courts. The Author  identifies and describes the characteristic features of Russian legislation 
and law enforcement practice aimed at the mandatory application of international norms in the courts of Russia. The article analyzes the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights in national judicial practice. The Author notes that in the Russian Federation, the consolidation of international standards, including European ones, is possible thanks to the Constitution of the Russian Federation, as well as other norms of domestic law. The special attention is paid to the decisions of the Plenum of the Supreme Court of the Russian Federation, which contain instructions for judges on the application of international treaties of  the Russian Federation. There is a tendency to increase the use of international legal norms in the process of consideration of cases of various categories by judicial bodies, primarily the Constitutional Court and the Supreme Court of the Russian Federation. On the basis of the conducted research, the Author makes the conclusion about the mandatory application of international treaties of the Russian Federation for the effective and fair administration of justice and the need for uniform application of the norms of international law in practice, including by the highest judicial authorities. The legal positions of these courts reflect the obligation of the state,  represented by authorities, officials, and all law enforcement agencies, to comply with and apply international treaties of the Russian Federation.  

83-91 926
Abstract

 The Author carries out an up-to-date study reflecting the possibility of providing other means of proof to an arbitration court, namely, information that can be obtained using free services “Google Maps”  and “Yandex.Maps”. The judicial practice has been investigated, in which such means of proof meet all the evaluation criteria, and sometimes the photographs presented in the case materials are the only evidence that confirm certain circumstances of the case. An analysis of judicial practice in the arbitration process shows that photographs from Yandex.Maps and Google Maps are more often than  others attached to the case materials when it is necessary to establish the  presence of an object in a specific territory, including the periods of its presence. In relation to modern means of proof, the Author uses the term “unnamed evidence” to emphasize that the procedure for research and assessment of such evidence is not fully clear to the law enforcement officer  and is not enshrined by the legislator. Since the current arbitration  procedural legislation establishes an open list of means of evidence, and the law does not contain special instructions on the procedure for evaluating and examining such evidence (Part 2 of Article 64 of the Arbitration Procedure Code of the Russian Federation), the term used may well be applicable to information received using the Google Maps and Yandex.Maps services. The latter, in turn, under certain conditions (after going through the process of proof) can be evidence in the case, confirming certain facts. The article concludes that there is a need to legally secure the order of research and assessment of “unnamed evidence”, which is also confirmed by judicial practice. The work also mentions the proposal of Rosreestr to create a unified database service for real estate objects. With a certain degree of objectivity and reliability, it seems that this proposal should be supported at the legislative level and implemented in the foreseeable future. 

ISSUES OF LAW ENFORCEMENT PRACTICE

92-102 415
Abstract

 Attention to the effectiveness of modern lawmaking, its prognostic assessments and optimization of law enforcement has not weakened. The consideration of these problems from the point of view of system analysis  requires creative interaction of various structures interested in improving  state-building, balanced development of the legal system, ensuring the  effectiveness of its impact on society, strengthening the rule of law and order
in the country.
One of the most effective forms of such coordination is the Scientific and Methodological Council created under the Prosecutor of the Omsk region, a special task among the many of which the development and discussion,  together with legal scholars, of scientifically based recommendations on  problematic issues of prosecutor’s supervision, legislation and law enforcement practice, legal advisory opinions on issues arising in the practice of prosecutor's supervision.
The article proposes to discuss some actual problems of law enforcement raised at one of the meetings of the Scientific and Methodological Council under the Prosecutor of the Omsk region. In particular, the problematic issues of the qualification of actions of persons under Article 165 of the Criminal Code of the Russian Federation (causing property damage by deception or abuse of trust) related to the misuse of funds of  resourcesupplying organizations are considered. In this regard, the position  is expressed, according to which the process of qualifying a person's actions according to the examined norm requires an analysis of civil law relations.
In the second part of the material, the problematic issues of determining the jurisdiction in the proceedings based on the materials of inspections and criminal cases against persons specified in Article 447 of the Code of Criminal Procedure of the Russian Federation, but who have lost their status, are considered. In solving this problem, the actions of Chapter 52 of the Code of Criminal Procedure of the Russian Federation are proposed to be fully extended to the special person specified in it, who at the time of  initiating a criminal case lost  their official position, but on the condition that  the subject of criminal prosecution is a crime committed by one of these persons during the period of their special status. In addition, consideration of other features of criminal proceedings of this type should depend on the specific investigative and judicial situation, and the jurisdiction of criminal cases against “special persons” who have lost their status should be  determined according to the general rule of Chapter 52 of the Code of  Criminal Procedure of the Russian Federation.  



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