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Siberian Law Review

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Vol 21, No 1 (2024)
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PUBLIC LEGAL (STATE LEGAL) SCIENCES

6-21 295
Abstract

The subject of the study is the norms of the legislation of the Russian Federation on the state civil service of the Russian Federation. These norms provide additional guarantees for state civil servants of the Russian Federation for lump-sum subsidy aimed at acquiring accommodation. The purpose of the study is to consider the legal significance of a lump-sum subsidy for buying accommodation, to identify the conditions for the right to this subsidy, to determine whether it is mandatory or optional for the constituent entities of the Russian Federation to exercise their powers to provide employees of the subject of the Russian Federation with a lump-sum subsidy for the accommodation, to propose amendments to the legislation. The methodology of the study are such scientific methods as formal legal, structural functional approaches, comparison, research and analysis of studies and regulations. The study uses scientific research in the field of social security law and economic sciences. As a result of the study, the paper substantiates that a lump-sum subsidy for accommodation is provided in order to ensure the social security of civil servants of the Russian Federation. The right to this payment should be assigned only to those civil servants of the Russian Federation who need it and who, without the state support, are not able to change their financial situation and acquire accommodation. The paper proves the need for codifying the conditions for the right to this lump-sum subsidy. Using the analysis of federal and regional legislation that defines the powers of public law entities in the sphere under consideration, the paper proves the obligatory adoption of legal acts aimed at exercising the right of a civil servant of the Russian Federation to a lump-sum subsidy for the accommodation, regardless of the finances of the relevant budget. In order to have a unified legal regulation of the relations under consideration, the study substantiates the need to combine basic and additional state guarantees for civil servants of the Russian Federation, and presents specific proposals for changing federal legislation.

22-38 554
Abstract

The paper deals with one of the key features of the regulation of legal relations in the military environment. Those are the detailed regulation of rights, responsibilities, the execution of assigned tasks and orders. The author sees the reasons for such legal expansion in the historical tradition, i.e. fostering obedience and discipline among military personnel, guidance assistance to inexperienced commanders for them to be able to fulfill the assigned duties, as well as controllability and the intention to unify military activities in various military formations. Dysfunctional manifestations of this management style are instilling the lack of independence in decision-making, the habit of relying on superior management for all matters, the loss of initiative by subordinates, the inability to work in a team, lack of immediate response to sudden changes in the situation or non-standard situations. During military operations, these shortcomings not only reduce the effectiveness of control but are also likely to result in prevailing enemy's will, defeat, and unjustified casualties. Using particular examples of excessive regulation, the author questions the need, limits and degree of detailed legal regulation in the military environment. The paper analyzes the cases of directive control of the German Army (Auftragstaktik) and the commander's model used in respect of the subordinates with no detailed orders, with the subordinates being free to choose means and methods to achieve their goals. As measures to improve the legal regulation of the domestic military administration, the paper proposes to eliminate the legal responsibility of military commanders for deviation from detailed orders in cases they take reasonable risk and do not violate legally protected interests. The study uses the methods of formal logic, i.e. comparison, description, classification, analysis, synthesis, etc., which made it possible to characterize the essence of the legal relations under consideration and compare them with the methods of legal regulation of the relevant labor relations.

39-50 365
Abstract

The paper analyzes the legal regulation of the limits of public authority discretion in territorial planning and urban development zoning of municipal entities, defines the limits of judicial control over bills issued by the relevant authorities. Due to comparative legal method we determine that the common feature for Great Britain, Germany and Russia is rather a broad discretion of authorized bodies in doctrine and practice as for planning, which, however, does not exclude control over issued planning acts. In Russia the powers of the bodies regarding preparation and approval of the documents of territorial planning and urban zoning of municipal entities are of discretionary nature. When issuing such acts, the body exercises the freedom of discretion, resulting from the lack and impossibility to define all legal conditions to adopt planning acts. It is noted that the decisions of public authorities, which enact these documents are the variation of discretional planning acts. In comparison to the practice of the Supreme Court of Russia and the courts of general jurisdiction, the local governing body has a broader discretion in regards of the discussed issues. Discretionary nature of such acts does not exclude evaluation of the limits of body’s discretion. The paper concludes that the restrictions of the directorate of the body, while issuing acts of territorial planning and urban development zoning of municipal entities and the possibility of their judicial review are due to the requirements to ground the adopted act by the body, as well as the restrictions of the powers of the body that issued the act. In Russia, the mentioned requirements are partly formalized in the legislation, some of them became judicial practice. Generalized judicial practice demonstrates that acts of territorial planning and urban development zoning of municipal entities result from the requirement to justify the adopted city design and the pursuit of the public goal by the body issuing the act. Normal judicial control of such decisions includes evaluation of the act from the point of legality. In some disputes, courts build their arguments based on the principles of legal certainty, proportionality and trust defense.

51-62 295
Abstract

The paper deals with the current issues of development and use of municipal information systems, and proposes their legal solutions. In particular, it is noted that federal legislation lacks a precise definition of a municipal information system. The analysis of regional and municipal lawmaking allows us to identify several attributes of municipal information systems: development or acquisition of the system by a decision of a local governing body; the powers of local governing bodies to implement the systems; full or partial financing from the local budget. In this regard, the Federal Law “On Information, Information Technologies and Information Protection” proposes to define a municipal information system as an information system created or acquired through a decision of a local governing body at the expense of the local budget and designed to solve the issues that are in jurisdiction of municipalities. The current municipal information systems can be divided into two groups: specialized information system complying with federal laws and general information systems designed to support the functioning of local governing bodies or municipal enterprises and institutions. At the same time, general municipal information systems of different municipal entities are rarely integrated. Therefore, when it is necessary, it becomes impossible or very difficult. This problem is mainly of organizational and technical nature. However, it is also a result of collisions and gaps in the regulatory framework of municipal information systems. To solve them, it seems necessary, firstly, to state in article 13 of the Federal Law “On Information, Information Technologies and Information Protection” the possibility to define the specifics of legal regulation of municipal information systems not only by legislative, but also bylaws on local selfgoverning; secondly, to indicate in the Federal Law “On General Organizational Principles of Local Self- Governing in the Russian Federation” the possibility of the subjects of the Russian Federation to be involved in lawmaking in municipal information systems.

CRIMINAL LEGAL SCIENCES

63-74 415
Abstract

The subject of the study is the provisions of criminal, criminal procedural and criminal exe cutive legislation, as well as acts of interpretation and judicial practice related to the legal regulation of exemption from criminal liability or punishment of those who have committed a crime. The purpose of the study is to compare the provisions of the criminal law regulating the grounds for exemption from criminal liability and punishment with the norms of criminal procedure law regul ating the procedure for making final decisions on the termination of a criminal case (prosecution). Using the general scientific dialectical method, as well as the methods of formal legal analysis and synthesis, the author identified and demonstrated contradictions between the norms of substantive and procedural law in terms of substantiating the grounds for terminating a criminal case (prosec ution) and the grounds for exemption from criminal liability (punishment). Conclusions. Ignoring the provisions of the Criminal Code of the Russian Federation, which contains an exhaustive list of grounds and conditions for exemption from criminal liability and punishment, results in uncertain legal consequences for those who have committed crimes, both as to criminal law coercive measures and determining the general legal consequences for a person committing a crime. Thus, in some cases, courts are forced to make decisions on exemption from punishment due to the expiry of the statute of limitations, despite the fact that Art. 78 of the Criminal Code of the Russian Federation requires that such persons be exempted from criminal liability. On the other hand, Art. 398 of the Code of Criminal Procedure of the Russian Federation contains a special provision for deferring the execution of a sentence, which is not found in the Criminal Code of the Russian Federation either as a basis for exemption from liability or from punishment. It is proposed to eliminate the exis ting contradictions in the branches of law by unifying the norms of criminal procedural legisl ation and bringing them into conformity with the norms of substantive criminal law that regulate the e xemption from criminal liability and punishment.

75-92 251
Abstract

The paper deals with diverse theoretical understanding of ensuring the criminological security of minors on the international level, and analyzes the regulation of the protection of children's rights. The paper focuses on formulating the conceptual framework of international legal protection of minors. It is proposed to introduce the author's concept of international legal protection of minors. The international legal protection of minors should be understood as a system of normative acts that entrench the rights and freedoms of children, the obligations of the states to exercise these rights and freedoms; as well as international mechanisms for monitoring the fulfillment by the states of their international obligations and protection of the violated rights of each particular minor. The study explores the history of the international legal protection of the rights of minors. It is noted that the international community has adopted a number of normative acts to ensure children’s rights, to prevent juvenile delinquency, the treatment of juvenile offenders, exercising justice. In particular, when it comes to juvenile offenders, the norms of international law are actually the policy of treating such children. At the same time, the key idea of all international legal acts in combating juvenile delinquency is recognizing the priority of preventive measures over punitive ones. Attention is drawn to the fact that due to globalization, no country will be able to fight crime effectively on its own, coordinated efforts of the entire international community are needed. At the same time, the useful law enforcement practices of foreign countries with regard to child protection should be of no less interest. It seems that the Russian Federation should attempt to decrease the level of punishment and incarceration.

93-106 431
Abstract

The fulfillment of the key function of criminal proceedings – the resolution of the case on the merits – is impossible without criminal procedural knowledge of all the circumstances of the crime committed. The foundation of this activity is criminal procedure and evidence, which is a very complex, multi-level system. The foundation of such a system is evidence. At present, there are serious contradictions in how the sources of evidentiary information, evidence of practice, and proof are interrelated. Collection, verification, evaluation and presentation of evidence, both in theory and in practice, often give rise to non-legal, unfair and unjustified criminal procedural decisions in pre-trial proceedings and in court. Despite the plethora if views on the theory of evidence, the lack of consistency in investigative and judicial practice with regard to the evidence suggests that at present there are a large number of unresolved problems in this field as well as on the legislative level. In this regard, it seems necessary to conduct a study on the historical and legal aspects of the institute of evidence and proof in domestic legislation in order to identify the prerequisites of its origin and patterns of development. The conducted research has theoretical and practical significance. First, it contributes to the development of the topic under discussion. Second, the identified regularities allow us to use them to develop recommendations on improving the current criminal procedural legislation. The author concludes that with lapse of time, the concept of evidence has changed: from a means of substantiating guilt in “evidence-argument” terms to an element of the system of evidence including source, content and procedural form. In addition, the criteria for analyzing the development of evidence law have been formulated.

107-120 335
Abstract

At the present stage of the development of science, there is no consensus on the relationship between the concepts of “prevention/prophylaxis” and “prevention”/preduprezhdenie (Russian) of crimes, even despite a large number of studies on certain aspects of preventive   activities of the investigator. At present, there are three main approaches to the correlation of the terms under consideration: prophylaxis and prevention as identical notions, preventive/prophylactic activity has a function of prevention, and vice versa, preventive activity acts as a generic concept for the function of prophylaxis. Crime prevention in terms of informing, warning, includes prophylaxis, prevention and suppression of crime.  All these elements are the stages. And prophylaxis is the first stage of preventive activity, as it affects the causes and conditions of illegal, criminally punishable human behavior. Prophylaxis is aimed at eliminating an intent to commit a socially dangerous act by eliminating the causes and conditions that contribute to this. Prevention is aimed at inducing a person who has the intent to commit a crime to refrain from the illegal type of behavior planned by him. The suppression of a crime is aimed at stopping the implementation of a criminal plan, that is, the criminal activity that has already taken place, as well as at minimizing the criminal result. At the same time, all these elements of preventive activity take place at different points in time. However, prophylaxis can be carried out both during the investigation of a specific crime or out of it through the investigator’s talks to employees, schoolchildren, students, through studies containing information about criminal cases. The lack of a unified approach to the ratio of prophylactic and preventive activities is also due to the lack of codification of these notions. Despite the fact that the legislator  focuses on the prophylaxis and prevention of specific types of crimes such as  terrorism, extremism in certain regulatory legal acts, there is still no clear distinction between them. 

121-131 290
Abstract

Corruption has become a transnational phenomenon that threatens the stability and security of the society. Moreover, this phenomenon has a negative impact on various spheres of society, which undermines the democratic institutions and values of any state. Statistical data from Russia and Kazakhstan indicate that the number of corruption-related crimes has been increasing, thus pointing at the lack of effective measure of combating this phenomenon. In the studies and normative acts of Russia and Kazakhstan regulating the issues of combating corruption, the concept of corruption is given a different interpretation. In this regard, using the analogy with the legislation of Kazakhstan, the authors propos a new understanding of corruption, which should be codified in the relevant Federal Law of Russia. In addition, in order to improve the quality of legal regulation of anti-corruption in the General part of the Criminal Code of the Russian Federation, it is necessary to consolidate the list of corruption-related crimes. There are quite a lot of definitions of the term bribery in academic literature. At the same time, most authors believe that it should be considered through criminal and legal components. Bribery is one of the most important elements of corruption, responsibility for it is provided in articles 366, 367, 368 of the Criminal Code of the Republic of Kazakhstan and articles 290, 291, 2911, 2912 of the Criminal Code of the Russian Federation. In the Criminal Code of the Republic of Kazakhstan, the offer and promise of a bribe (including the offer and promise of mediation in bribery) is not criminalized. In this connection, the authors, with regards to the requirements of the UN Convention against Corruption on criminalization of acts of promising, offering mediation in bribery, and relying on the practices of the legislator of the Russian Federation, propose to amend Article 368 of the Criminal Code of the Republic of Kazakhstan (Mediation in Bribery). The authors believe that the discussed changes and additions will result in a legal framework for combating corruption and defining its boundaries.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW



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