THEORETICAL AND HISTORICAL LEGAL SCIENCES
The paper discusses the self-regulation of law as one of its systemic inherent manifestations. Such problem statement enables the researcher to explain the mechanism that ensures the specific quality of objective law. Studying the self–regulation of law involves identifying what the inherent qualitative state of law dwells on – whether it is spontaneous or controlled from the outside.
The purpose of the study is to view the methodological possibility of applying a synergetic model of self-regulation to law.
This model describes spontaneous formation or change of structure in open, unstable and nonlinear systems. The Author associates the specifics of self-regulation of law with its teleological nature. The paper highlights the two aspects of teleological character of law: the purpose of its emergence and the purpose of its qualitative variety. On the one hand, law, emerging to serve a specific purpose, does not exist as an independent and self-sufficient entity, but as a specialized means of a particular purpose. On the other hand, law is a functioning system based on purpose and expediency. The quality of the system is always specific and adapts in order to achieve the set social goals. The paper proves that the teleological nature of law excludes self-regulation properties viewed synergetically, which implies the spontaneous activity of the system. The study shows that the processes taking place in law are characterized not by internal, spontaneous, but by external determination. The sequence and content of these processes is controlled from the outside by the purposeful activity of the law-creating subject and is subject to the general logic of the purpose of law. Considering law as a human-organized and controlled system; nevertheless, the Author proves that it has selfregulation properties. The self-regulation of law in the paper is viewed as one of the specific ways of preserving and reproducing its integral characteristics. According to the Author, the self-regulatory properties of law are reduced to its “self-adjustment”, which is not spontaneous, but deliberately set by a human to achieve appropriate goals. The mechanism of such “self-adjustment” is based on a set of adaptive legal means and specific connections that provide integrity, quality and functionality of law regardless of external conditions.
The study focuses on the legal system and legal relations of the ancient Russian Tmutarakan, one of the most poorly studied administrative-territorial formations in the historical and legal science of the origin of the integral Ancient Russian state.
The purpose of this study is to reconstruct the legal system of the Tmutarakan “principality”.
To achieve this, the Author uses the maximum number of materials available and characterizes the legal relations of ancient Russian Tmutarakan; the norms of customary law and the foundations that were built on this territory and were traditional for Tmutarakan society. The research methodology includes general scientific (inductive, comprehensive, logical) and specific scientific (formal legal, historical) methods. Inductive, comprehensive and logical methods made it possible to systematize all the information on the topic available to the Author and formulate the problem, proving no related research in the national historical and legal science. The research uses formal legal and historical methods to explore the legal system of Tmutarakan from legal and historical points of view. There is no doubt that the early feudal development determined the development of the Tmutarakan legal system as the one built on principles of customary law. At the same time, the legal system is viewed from the modern point of view in order to prove the fact that in comparison with the native Russian principalities, in Tmutarakan, the development of law was not lower, but often much higher. The results of this research can be used in educational literature, manuals on theory of state and law, and to be later developed to start a new field in historical and legal science, which is currently required but does not exist yet, that is, legal archaeology. Having conducted the research, the Author comes to the following conclusion: there was a developed legal system and legal relations in Tmutarakan. Not until the end of the 21st century, the historical and legal records of Tmutarakan basically contained the information from the chronicles of folklore nature. Only with the development of archeology, in the late 21st – early 22nd centuries, more information about the ancient Russian Tmutarakan and other forms of statehood on the Taman Peninsula and Hermonassa, Tamatarch in the Crimea was revealed. At the beginning of the 21st century, the problem of legal nature of statehood was investigated in the dissertations on theory of state and law. However, up to the present, the subject has not been thoroughly explored.
PUBLIC LEGAL (STATE LEGAL) SCIENCES
The participation of the public administration in the investigation of accidents is interconnected with the proceedings on administrative offenses regarding state regulatory requirements for occupational health and safety. In the context of these types of administrative activities, there arise issues related to the application of administrative discretion. In case of no regulation in the legislation of the Russian Federation, discretion is thoroughly investigated in scholarly papers and used by higher courts. In order to protect the rights and interests of citizens and organizations from uncontrolled discretion and ensure law enforcement, it is necessary to establish criteria of discretion, which is implemented by public administration bodies through the adoption of an administrative act. Moreover, the principles of confidence, legal certainty and proportionality are the basis for the legality of actions, their effectiveness and the protection of the constitutional rights of the observees. The purpose of the study is the administrative discretion in the implementation of the procedure for investigation and administrative investigation in cases of violations of state regulatory requirements for occupational health and safety. The paper analyzes the essence of discretion, describes the procedure for investigating industrial accidents in terms of assessing legal certainty and formalization of the procedure, subjective factors influencing the procedure, timing and results of the investigation. The paper also examines the implementation of discretion through the example of administrative investigation into violations of state regulatory requirements for occupational health and safety. The study uses formal legal method, formal logical and dialectical methods. The following conclusions are made: 1) administrative discretion is determined through the categories of "choice" and "freedom" restricted by law; 2) greater legal certainty of the investigation procedure is required; 3) it is necessary to avoid conducting and extending the terms of an administrative investigation with no just cause; 4) it is important to observe proportionality in imposing administrative penalty.
The practice of having ombudsmen in Russia is relatively recent. The branching of this institution into specialized ombudsmen provided a more timely and specific protection of citizens' rights. Their work is impossible without various constitutional and legal instruments, the meaning of which is revealed in this paper. The Institute of the Commissioner for Entrepreneurs' Rights at the President of the Russian Federation exercises its powers in accordance with current legislation. However, there are situations requiring a more timely response to the problems of the business community. The annual report of Commissioner for Entrepreneurs' Rights at the President of the Russian Federation is a form of report combining the results of the activities of the central office and regional business ombudsmen. It also contains statistics, social survey data, a special report including key business problems, a register of systemic issues of Russian business, as well as administrative pressure index, etc. Using these instruments, a business ombudsman can manage his work in numerous regions of the Russian Federation, provide federal business support, conduct international negotiations, maintain international cooperation, and be engaged in educational and teaching activities.
All these prove the relevance of the research.
The purpose of the study is to identify and analyze the means used by the Commissioner for the protection of the rights of entrepreneurs.
The main part of the study presents three instruments: a special section of the annual report “Key business issues in the context of sanctions and structural transformation”, a Register of systemic issues of Russian business, and administrative pressure index. The methodological basis of the study is the methods of analysis, modeling, observation, comparison and others. Currently, due to a well-coordinated functioning mechanism and a wide number of public and expert assistants, a business ombudsman timely and properly solves various business issues. The paper studies the role the means used by a business ombudsman play for the state and specific public authorities.
The paper examines the difference between the terms “digital economy” and “digitalization of the economy”. Having conducted research, the Author comes to the conclusion that the term “digital economy” cannot be used to denote technologies being used in global economies. Digitalization of the economy is currently underway all over the world. The era of digital economy has not come yet because mankind has not seen a new technological leap as a part of evolution to result in creating artificial intelligence. The introduction of artificial intelligence technology into the economy, which will have been digitalized by then, will lead to a single digital economy in the meaning the term “digital economy” implies. The Author thinks that without integration of these two phenomena, the use of the term “digital economy” is erroneous. Having studied the historical prerequisites for the emergence of the phenomenon of “digitalization of the economy”, the Author comes to the conclusion that the only country in the world that was on the verge of building a state based on digitalization technologies was the USSR. That took place 40 years before the term “digital economy” appeared. The paper goes on to say about the legal regulation of creating artificial intelligence in countries such as the United States of America, England, Germany, France, Italy, Poland, Israel, India, China, South Korea and the Russian Federation. The paper draws the examples of legislation of various countries that regulate the legal status of artificial intelligence, as well as their various approaches to the development of artificial intelligence. Moreover, the study highlights the problems of a non-legal nature that lawyers and users will face when they use artificial intelligence technology. Artificial intelligence is viewed in the context of business security. The Author is certain that administrative and legal institutions have to regulate this area of activity.
The paper examines the problem of family (domestic) violence in the Russian Federation, where a public law mechanism is used to ensure the protection of citizens' rights. Noting that the trends in the development of the system to combat family violence are being discussed in Russian society, the Author indicates that this system should be based on the Russian law and the milieu, i. e. taking into account the traditions and values of Russian society. The paper presents the analysis of public law studies on the functioning legal mechanisms to ensure the rights of citizens to be protected from domestic violence and identify the structural elements of those mechanisms. In particular, the Author defines the properties and elements of the public law mechanism for ensuring the protection of citizens from family violence, and proposes his own definition. The social environment generates a milieu of law and determines the trends in its development. The legal milieu itself is the basis for law-making activities. Due to the adopted or modified legal norms, when they are implemented in various ways over a long period of time, the social milieu also undergoes changes. These changes are viewed as cyclic; however, all the components of this cycle change qualitatively with each turn acquiring new properties. These cycles are directly related to the functioning of public law mechanisms to ensure the rights of citizens are protected. The mechanisms under consideration are dynamic: they themselves are subject to change and they impact certain areas of public relations in order to protect
their values.
The subject of the study is the norms of constitutional and administrative law, which are the basis for the public law mechanism ensuring the protection of citizens' rights to combat family violence.
The purpose of the study is to formulate the concept of a public law mechanism for ensuring the protection of citizens' rights to combat family violence, to present the mechanism structure, its elements, which can be directions for improving the activities of the subjects of this mechanism.
The functioning of the public law mechanism for ensuring the protection of citizens' rights to combat family violence is based on a set of legal norms, divided by the Author into 4 groups. The following components are among the elements forming the structure of the considered public law mechanism: subjects; instruments; legal and procedural forms of public administration; resources (procurement); a system to observe the legality of the subjects of the public law mechanism for the protection of citizens' rights to combat family violence; criteria and an assessment of the effectiveness and efficiency of the functioning mechanism under consideration.
CRIMINAL LEGAL SCIENCES
Building a state governed by the rule of law involves improving the mechanism for combating encroachments on justice ensuring observance of human and civil rights and freedoms. In changing criminology realities, in the focus of discussion are the ways to increase the effectiveness of guarantees
aimed to observe the rights and freedoms of persons involved in criminal proceedings, also with the help of criminal legal means. The paper presents the criminal law analysis of the signs of a victim of coercion to testify (Article 302 of the Criminal Code of the Russian Federation).
The subject of the study is the set of definitions used by the legislator to describe the signs of a victim of coercion to testify, as well as the provisions of criminal procedure legislation regulating the legal status of participants in criminal proceedings protected by the norm under consideration. The analysis of the stated problems is based on the legal views of the highest judicial authorities, with regard to historical, legal and doctrinal aspects. An interdisciplinary approach made it possible to identify the peculiarities of the legal status of persons classified by the legislator as victims of coercion to testify. The paper analyzes the legal status of the person whose criminal case was severed from the rest as a result of a plea bargain with him, as well as the person against whom proceedings to take compulsory measures of medical nature are conducted. The study focuses on the applicant, the eyewitness, the victim of the crime and parties of no procedural status but possessing important criminal information. The current criminal legislation does not provide for bringing the offenders to justice in case of undue influence against parties with an informal procedural status in the course of criminal proceedings. The paper substantiates the need to classify these parties as victims of coercion to testify. There is a discrepancy in the terminology of criminal and criminal procedure laws, and imbalance in providing punishment according to general and special rules. The undertaken research proposes to improve the legal and clerical condition of the current version of Article 302 of the Criminal Code of the Russian Federation in terms of clarifying the range of victims, and to review the penalty with regard to the general rule.
A significant body of scholarly literature examines the shortcomings of the preliminary investigation. However, the historical aspects of this problem have not been thoroughly investigated. Currently, there is a lack of papers giving the comprehensive analysis of the shortcomings of preliminary investigation before the revolution. The paper examines the concept and types of shortcomings of the preliminary investigation mentioned in the works of Russian processualists of the second half of the 19th and early 20th century. The Author hypothesizes that by the beginning of the twentieth century, the doctrine prescribed that the shortcomings of the preliminary investigation as a relatively mass phenomenon, the essence of which was a violation of the requirements and procedures of the preliminary investigation. The Author uses historical and legal, statistical methods, a system analysis. The historical and legal methods enabled the Author through the analysis of the provisions of the doctrine, the Statute of Criminal Proceedings of 1864, and the changing judicial practice, to retrospectively trace academic approaches to the shortcomings of preliminary investigation. In addition to the historical and legal methods, the Author uses the method of system analysis. This analysis helps to examine the shortcomings of preliminary investigation in their connection with the main stages and institutions of the pre-revolutionary criminal procedures. The statistical methods helped to reveal the structure and identify the changes in the shortcomings of the preliminary investigation from 1874 to 1914. The Author has come to the following conclusions: the content of the concept of "shortcomings of the preliminary investigation" was revealed through characterizing typical violations committed during the preliminary investigation; such shortcomings of preliminary investigation as major violations committed; non-criminal actions of the court investigator; certain procedural and social consequences. The Author concludes that it is advisable to relate investigation mistakes of present time to the provisions of the pre-revolutionary doctrine. The paper reveals the structure of the shortcomings of preliminary investigation including the incompleteness of the preliminary investigation and its biased character, prolonged proceedings, violations of the forms and procedure of preliminary investigation, incorrect classification of crime. The Author proves that the greatest drawback in the structure of the preliminary investigation was incompleteness of the preliminary investigation. For the period from 1874 to 1914, a tendency of increasing the number of mistakes made at the stage of the preliminary investigation was revealed.
The relevance of the proposed study is due to the existing problems of the institution of conciliation in the criminal proceedings of the Russian Federation.
At the same time, no detailed legal regulation of the conciliation mechanism in the CPC of the Russian Federation significantly reduces the effectiveness of law enforcement through using alternatives to criminal prosecution. As a result, there is a need to find new effective ways to resolve criminal law disputes allowing for the full restoration of the rights of victims of crime. One of these methods is mediation procedure, which contributes to resolving criminal law conflicts in an extremely constructive and mutually beneficial way for both sides of the dispute with the help of an independent third party (mediator). This procedure is reflected in the concept of restorative justice.
The purpose of the study is to determine the theoretical background of the institution of conciliation in criminal proceedings on the basis of a historical, legal and comparative analysis of its procedures, as well as to identify the issues related to law enforcement. In this regard, the proposed paper examines a well-established mechanism for the settlement of criminal law conflicts in western legal systems.
This mechanism provides for a special subject of conciliation – a mediator possessing professionalism, independence and impartiality. The paper substantiates the reason of introducing the institution of mediation into domestic criminal proceedings, proposes its functional and legal model providing for a range of crimes with possible conciliation, the stages of its implementation, as well as requirements for mediators as candidates. The paper extensively uses comparative legal method helping to determine the prerequisites for introducing the institute of mediation in the Russian criminal procedure legislation as an independent form of resolution of criminal law conflicts. The Authors come to the following conclusions: It is advisable to update the provision of Article 25 of the Code of Criminal Procedure of the Russian Federation and codify the concept of mediation as “a way to resolve a criminal conflict used with the voluntary consent of the victim and the offender with the help of an impartial third party” and the conditions for its application. It is necessary to legislate a new impartial and independent party in criminal proceedings – a mediator who will act as a third party in the mediation, exclusively on a professional basis. Moreover, the Federal Law “On Alternative Dispute Settlement with the Help of Mediator (Mediation)” dated July 27, 2010 No. 193-FZ needs to be edited in terms of extending mediation to criminal law relations, which will allow conflicting parties to resort to this procedure. In particular, amendments to this law should concern the requirements of a professional mediator, including those involved in criminal proceedings.
Clause 3 of Article 123 of the Constitution of the Russian Federation stipulates that judicial proceedings are conducted on the basis of competition and equality of the parties. The problems of proof in an adversarial criminal trial are the subject of research in numerous scholarly papers. The current Criminal Procedure Law contains a number of norms regulating the defense party in the exercise of powers in criminal proceedings, in particular, in collecting evidence. However, the methods and procedure for collecting evidence by the defender are hardly regulated by the norms of this law, which the Authors of this paper emphasize. The lack of regulation results in the law enforcement officer being confronted with the problems arising when it is required to evaluate evidence presented by the defense. The basis for evaluating the expert's opinion is the ruling of the Constitutional Court of the Russian Federation, according to which, by virtue of the principle of legal equality, homogeneous relations should be regulated in a similar way. Therefore, verification and evaluation provided by an expert and presented by the defense attorney as evidence are carried out with regard to the need of complying with uniform rules and conditions for the similar evidence provided by the prosecution and by the court. The paper analyzes a number of problems related to exercising by the defense party the right to involve an expert into criminal proceedings, and focuses on the imperfection of the conceptual and terminological system and the lack of regulation of this activity of a defense attorney. To ensure the comprehensive study of the issue indicated in the title of the paper and the deep understanding of the content, the Authors consistently examine the following issues: the legal grounds for the use by the defense of the results of the applying expert knowledge by well-informed parties; evaluation of the specialist's conclusion in the evidence system and the ratio of evidence “specialist's conclusion” and “expert's conclusion”; the conditions of acquiring by the defense the evidence “specialist's conclusion”. Since criminal procedure law does not actually “prescribe” the procedure for acquiring by the defense such evidence as a “specialist's conclusion”, the Authors, using the rulings of the Constitutional Court of the Russian Federation, provide an approximate sequence of actions of the defense attorney intending to involve a specialist and their conclusion.
The paper analyzes scientific and theoretical, organizational and practical ideas about the effectiveness and inefficiency of the investigation of criminal cases in general, and cases of embezzlement of budgetary funds, in particular. Case studies of effective and ineffective investigation of the specified criminal activity are given. The definition of effectiveness is formulated in relation to the investigation of embezzlement of budgetary funds, in which compliance with the main priorities of the state policy of the Russian Federation is important. The paper analyzes the criteria for evaluating the law enforcement activities of law enforcement agencies. There are contradictions between the criteria of real effectiveness of the investigation and the requirements of statistical reporting by investigative authorities. In the context of the effective investigation criterion and with regard to the provisions of the “National Security Strategy of the Russian Federation” approved by the President of the Russian Federation, priorities of effective investigation in criminal cases of embezzlement of budgetary funds have been identified. This is a priority for crime prevention, the need to combat, first of all, the most socially dangerous types of embezzlement committed by public authorities and organizations with state participation, especially corruption concerning those involved in national projects and fulfilling state defense orders. Full compensation for the damage caused and an increase in the level of responsibility for suchlike criminal activity are also a priority. The paper concludes that an effective investigation is the observance of these priorities. They should concern practical, organizational and managerial, and scientific activities. The requirements of statistical reporting by law enforcement agencies need to be adapted to the criteria of the real effectiveness of the investigation of criminal cases. Forensic scholarly research has to be aimed at providing priorities for the investigation of embezzlement, to demonstrate the implementation of efficiency criteria through the case studies as recommendations.
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