Open Access Open Access  Restricted Access Access granted  Restricted Access Subscription Access

Vol 14, No 6 (2021)

Articles

Specific Parameters in Argumentation as a Marker of Interference of Anglo-American Legal Experience

Voronin M.Y., Moiseenko L.V., Ikulina M.A.

Abstract

The purpose of the research: The research is aimed at identifying specific features of legal stereotypes representing special knowledge in the Anglo-Saxon law system as well as at defining interference markers of their actualization in the process of case analysis undertaken by Russian students studying legal English and the Anglo-American law system. The authors have attempted to specify and illustrate social and cultural parameters underlying the court argumentation and influencing the formation of a legal stereotype of reasonable man as well as to determine and describe the interference markers in the argumentation of Russian law students. The research that has been based on the discourse analysis has focused mainly on verbal representation of the already formed stereotypes and relied heavily on the results of the experiment with the involvement of Russian law students. According to the authors, identifying foreign legal stereotypes and interference markers may lay the foundation for further research aimed at studying compensatory potential of foreign legal stereotypes in case there is no appropriate stereotype shared by the Russian law community. Conclusions: The results of the research lead to the conclusion that in the process of modelling events typical of the English courtroom discourse and based on the argumentation principles echoing those applied by the judges in the original case a legal stereotype correlating with the stereotype in the consciousness of an English lawyer is formed in the consciousness of Russian law students. This stereotype further interferes with the perception of the Russian concept and gets actualized while analyzing cases in Russian. It is regarded desirable to work out recommendations for higher education syllabus to take compensatory potential of foreign legal stereotypes into account. The methodology and methods of the research: The commonly accepted dialectical method of studying societal processes and social and legal phenomena as well as their interconnection and interdependence has been applied as the methodological basis for the research aimed at determining the ways through which stereotypes representing special knowledge in the Anglo-Saxon law system are formed and at defining interference markers of their actualization in the process of case analysis undertaken by Russian students studying legal English and the Anglo-American law system. Alongside the dialectical method, the following private scientific methods have been exploited: the formal logical method helping to identify characteristics of stereotypes; discourse analysis focusing on verbal representation of stereotypes and contributing to modelling their structure; an experiment based on social research and carried out in the form of an interview that has helped to reveal interference markers for stereotypes and mindsets based on legally relevant social and cultural parameters in the course of legal argumentation.
Gaps in Russian Legislation. 2021;14(6):16-22
pages 16-22 views

Development of the Quarantine Service of the Mia of the Russian Empire in the XIX - Beginning of the XX Centuries

Lukyanov S.A., Tarasova I.A.

Abstract

The purpose of the article is to study the features of the formation and development of the quarantine service in pre-revolutionary Russia. The object of research is the public relations associated with the activities of the implementation of the quarantine regime. At the same time, the subject of research is the regulatory legal acts regulating the activities of the quarantine service of the Russian Empire, materials from periodicals. Within the framework of the research methodology, using historical-legal, comparative-legal and comparative-historical methods, an analysis of the activities of units of the Ministry of Internal Affairs of the Russian Empire related to the organization and implementation of quarantine measures was carried out. Particular attention is paid to the creation of the quarantine department of the Ministry of Police (since 1819 - the Ministry of Internal Affairs). The authors have studied in sufficient detail the structure, functions, powers and normative basis of the activities of the quarantine department for the implementation of the quarantine regime, the role of quarantine institutions in the prevention of epidemic diseases in Russia is shown. Based on a number of factors, an assessment is made of the activities of the quarantine management units created in 1866 - quarantine agencies and quarantine councils. It is concluded that the quarantine service of the Ministry of Internal Affairs of the Russian Empire, as one of the units that contributed to the protection of «public health», has gone through a rather long and very difficult path of development. The effectiveness of its activities was inextricably linked with the entire system of sanitary-epidemiological and veterinary supervision of the empire that existed at that time, with all its disadvantages and advantages.
Gaps in Russian Legislation. 2021;14(6):23-28
pages 23-28 views

China's Water Law: Features of Formation and Functioning

Ju D., Wang J., Matveevskaya A.S.

Abstract

The system of water law in China is built differently than in many countries of the world. It emerged from a planned economic system, a traditional society in which agriculture was the majority, and a rapid stage of industrialization and urbanization. It has its own characteristics. Proceeding from the premise of compliance with the fundamental system of the socialist market economy, the main characteristics of the reform and construction of the water law system in China are: compliance with the system of state ownership of state and collective water resources, and the introduction of a management system based on government leadership, full control, priority and regional coordination. Through gradual reforms, such as pilot projects, the marketization process will be accelerated and the market mechanism will be used to optimize the allocation of water resources. The purpose of the work. By analyzing the water legislation of China, to study the characteristics, the direction of the reform of water law and the ways of building the water law system of China. Methods. Empirical research methods, search and analysis of information from mass media, analysis and comparison of data, comparison and generalization were used in the work. Results. Through the study of the water law system in China, it was possible to identify the main direction of water law reform, which corresponds to the general trend of water law reform in the world, which is that the government assumes a leading role and fully uses the role of the market economy in optimizing the allocation of resources.
Gaps in Russian Legislation. 2021;14(6):29-35
pages 29-35 views

The Development of Digitalization in the Modern Russian State

Rasulova A.M., Shepelev D.V., Shepeleva D.V.

Abstract

The relevance of the article is connected with the emergence of such a scientific category in law as «digitalization». Digitalization processes are being actively introduced into public, political, economic and legal life directly by authorities, for example, the Government of the Russian Federation, which by 2021 is moving from «electronic Government» to «Digital Government», introducing digital technologies into the system of executive authorities as digitalization tools for fast and effective digital interaction both among themselves and to optimize interaction with citizens and organizations. This issue requires a scientific analysis. Therefore, the main purpose of the article will be to study the problems, scientific research of the current state and prospects of mutual influence of digitalization and digital space in the law of the modern Russian state, analysis of the role of digitalization in law as a legal category. The article also analyzes the legal concepts of digitalization, it is noted that the Concept of Government will be transformed into a Digital Government in 2021. The implementation of this transformation is carried out by the Government of the Russian Federation itself, the Ministry of Digital Development of the Russian Federation on behalf of the President of the Russian Federation. At the same time, this concept does not aim to replace the traditional system of state authorities or transform bodies, but is aimed at increasing the accessibility and quality of interaction between the population of the state and the authorities, as well as digital interaction between the state and municipal authorities themselves. It is noted that there is a tendency to transform public power into the mainstream of digital technologies and digital interaction, for this purpose a number of legal documents have been created - concepts, in particular, the concept of the digital economy, implemented on behalf of the President of the Russian Federation.
Gaps in Russian Legislation. 2021;14(6):36-40
pages 36-40 views

The Princely Squad as a State Power Institution of the Old Russian State

Razmakhov K.E.

Abstract

The purpose of the article is to study the princely squad as a powerful institution, with the help of which princely rule was carried out in the era of the early feudal monarchy. Within the framework of the research methodology using historical-legal, comparative-legal and comparative-historical methods, on the basis of a number of materials and sources, the analysis of the princely squad as a powerful institution of the Old Russian statehood was carried out. The article concludes that the squad was a special social structure, separated from the urban community, in which the prince himself was the first among equals. In the XI-XII centuries. the nature of princely power changes significantly. The senior squad, who received land grants from the prince, breaks away from the princely court and turns into large boyars-patrimony. Although the institute of the Grand Ducal squad continued to exist, its role has changed. As the main military force of the prince, the feudal militia comes to replace the squad.
Gaps in Russian Legislation. 2021;14(6):41-44
pages 41-44 views

Incorporation of Caucasian Territories to the Russian Empire: The Connecting Problems

Shaov I.K.

Abstract

The annexation of the Caucasian lands (which had different levels of development of state institutions) to the Russian Empire is of considerable scientific and practical interest. Despite the large number of works on this topic, we do not have at our disposal generalizing studies created within the framework of the state-legal approach. A similar generalizing work describing the formation of the Russian imperial statehood was created by the outstanding historian and lawyer B.E. Nolde, but, unfortunately, it was not completed until 1864, when the annexation of the Caucasus was completed and this work was devoid of extremely important "chapters" or aspects (such as the incorporation of the Circassian lands after 1829; the incorporation of the Abkhazian principality after 1810; incorporation of the Imeretian kingdom after 1804, etc.). The need and legitimacy of a comprehensive analysis of the incorporation of the Caucasian territories in the chronological framework from 1774 (the initial phase of the annexation of Kabarda) to 1864 (elimination of autonomy of the Abkhazian principality) is seen in the following: 1) all the territories of the Caucasus and the Northern Black Sea region were in the formation zone of the Russian Empire on the basis of the territorial, unitary principle, which became decisive in the policy of the tsarist cabinet since 1764 (the annihilation of the institution of hetmanship in Little Russia); 2) all the Caucasian and northern Black Sea territories were perceived by the Russian establishment as a kind of "barbaric" periphery, inhabited by peoples with such a critically low level of development of state institutions that it is impossible to maintain positive legal practices with them; 3) in relation to all social groups of the incorporated territories, an essentially unified policy of co-optation and ideological assimilation was successfully implemented; 4) the whole mass of at first glance different legal procedures and practices accompanying the incorporation processes forms a fairly integral complex of historical and legal problems, expressed in identical legal forms and political and legal terms.
Gaps in Russian Legislation. 2021;14(6):45-53
pages 45-53 views

Mechanism of the State: Systemic and Functional Aspects

Valiev R.G., Shashkarova G.V.

Abstract

Purpose of the researching. In the article draws attention to the fact, that in the domestic literature on the theory of law and state, other juridical sciences sporadically have been discussed the question about the content of the definition «state mechanism». In this regard, the aim of the study is an attempt to find an original, acceptable and generalizing position of different scientists - juridical scholars on this issue of defining of the mechanism of the state as a scientific category. Conclusions. As a result of the analysis, based on the systemic and functional approaches, the authors come to the conclusion that the mechanism of the state is a set of interconnected functioning elements (state bodies, state employees, etc.) that ensure the proper regulation of public relations and the implementation of relevant public goals, objectives, functions. Authors are talking not so much about a static as a dynamic state-juridical phenomenon, covering in one format or another with its own influence all spheres of the current system of social relations. The mechanism of the state reflects the specifics of public administration from the point of view of a definite given result, changes (or preservation in a relatively unchanged form) of social reality, streamlining of public relations (ensuring of law and order, legality, security, guaranteed of the rights, fundamental freedoms of man and citizen, etc.), achieving important national goals and priorities. The system of elements of this mechanism provides the state, as the «core» of the political system of society, the quintessence of public power, legitimacy, legality, necessary, but not always sufficient resistance to emerging internal and external threats, challenges, dangers.
Gaps in Russian Legislation. 2021;14(6):54-59
pages 54-59 views

William Jethro Brown's Critique of John Austin's Legal Theory as a Stage in the Development of Legal Positivism

Korzhenyak A.M., Mikhailov A.M.

Abstract

The purpose of the research. This article analyses the main points of the legal teaching of the Australian jurist William Jethro Brown (1868-1930), which the authors of this study regard as forming one of the significant stages in the evolution of Anglo-American legal positivism. Along with his contemporaries, a New Zealand lawyer John William Salmond (1862-1924) and British jurists Thomas Erskine Holland (1835-1926) and John Mason Lightwood (1852-1947), Brown was among the first critics of the «command theory of law» of the founder of the analytical school of jurisprudence John Austin (1790-1859). The authors of this article prove that the ideas, including those of W. Brown, play the role of a link between the founders of the analytical school of law (J. Bentham, J. Austin), the teachings of William Markby, Sheldon Amos, and subsequent generations of English legal scholars of both positivist and neo-positivist direction. Many provisions of Brown's legal doctrine became the basis for criticism of Austin's command concept and legal understanding in the teachings of H. L. A. Hart, the central figure of English neopositivism of the 20th century. As a result of the research the authors conclude that there are comparative similarities between W. J. Brown's conception of «rules of external action», J. W. Salmond's idea of «ultimate legal principles» and H. L. A. Hart's legal doctrine on the «rule of recognition».
Gaps in Russian Legislation. 2021;14(6):60-65
pages 60-65 views

Legal Custom as a Source of Civil Law: Theoretical and Legal Problems

Efimova O.A.

Abstract

The article analyses the essence of the phenomenon of legal practice in Russian civil law. Discusses examples of legal custom, it investigates the nature of particular legal traditions. This article provides an analysis of such a theoretical and legal phenomenon as legal custom in russian civil law. Examples of legal customs are considered, the essence of specific legal customs is investigated in order to identify the role of legal custom in the formation of legislation, as well as the procedure for authorizing customs and filling gaps in law, the nature of the operation of legal customs is analyzed on a par with the law and in some cases instead of the law. The examples of judicial practice related to the legalization of legal customs and the practice of sanctioning legal customs within the framework of contractual relations, as well as options for the direct impact of customs on social relations, are considered on the example of certain types of legal relations. In addition, the author identifies the characteristic features that make it possible to define custom as a modern source of law, and establish the need for a more comprehensive study of the application of legal custom as a source of individual branches of law.
Gaps in Russian Legislation. 2021;14(6):66-70
pages 66-70 views

Levels of Law Transformation in the Conditions of Legal Space Digitalization

Rassolov V.Y.

Abstract

The purpose of the study. Based on the analysis of the levels of penetration of information technologies into the legal space, different in degree of impact, the current state of digitalization of state-legal phenomena is determined. Results. Four levels are highlighted: 1) improvement of legislation in connection with the emergence of new objects and social relations; 2) the introduction of digital technologies in the field of legal practice; 3) translation of the regulatory framework of legal regulation in the form of a program code; 4) the creation of a fundamentally new normative system, which will be an independent social regulator, along with law in its classical interpretation. As a result of the research, the author comes to the conclusion that at present there is an active development of the first level and a smooth implementation of the measures of the second. We see the achievement of the third level as a prospect for the coming decades. The fourth level can only be seen as a distant perspective.
Gaps in Russian Legislation. 2021;14(6):71-75
pages 71-75 views

The Referendum as the Most Important Mechanism for the Realization of Democracy in a State Governed by the Rule of Law

Zhigalova E.A., Shelegov Y.V.

Abstract

The holding of referendums has recently become a general practice of securing the most important decisions of state importance. However this form of expression of the will of the population is not always obligatory and can be aimed at satisfying precisely its interests. Purpose: to study the essence of the referendum, as a source of making the most important decisions, as well as criticism of its main mechanisms, taking into account the analysis of the functioning of those elements of the modern management system, the activities of which may be affected by the conduct of the general vote in question. Methodological basis: philosophical analysis of the categories "essence" and "phenomenon" taking into account the application of the foundations of dialectics and critical analysis. Results: the author declares the uniqueness of the essence of the referendum in comparison with other forms of free expression of the will of citizens, and also provides grounds that indicate the imperfection of existing approaches to its use in practice. Conclusions: a referendum is a special form of making the most important state decisions, but its use largely depends on the activity of the population itself and its interest in expanding the democratic foundations of building society.
Gaps in Russian Legislation. 2021;14(6):76-80
pages 76-80 views

Civic Initiatives: Models of Constitutional Formalization in Post-Soviet Countries

Bezuglaya A.A.

Abstract

This article presents the author's analysis of civil initiatives in order to identify terminological features that are applied to them. In the course of the study, it was found that in legal science and practice there are various approaches to the interpretation of such initiatives (civil, popular, public, right-making, law-making, legislative). Such variability, as it seems to the author, fixes, on the one hand, the subjects of such initiation (citizens, people and society), on the other hand, it reflects the content of these initiatives (right-making, law-making and legislative initiatives). It is noted that civil initiatives can be considered as a collective right of citizens (expressed in the enforcement of the right to freedom of speech (part 1 and part 4 of Article 29 of the Constitution of Russia) and the right to appeal to public authorities (Article 33 of the Constitution of Russia)), and in the form of an independent constitutional and legal institution. In the course of considering the indicated problem, the author analyzed the constitutional texts of the countries - the former republics of the Soviet Union - for the purpose of formalizing the institution of civil initiatives in them. It was found that civil initiatives are constituted in most of the studied states. It was noted that some constitutional acts (Kyrgyzstan, Latvia, Ukraine, Estonia) consolidate the implementation of the people's initiative. The author formulated the conclusion that the consolidation of the institution of civil initiatives at the constitutional level, on the one hand, states a positive attitude of the state to the people's power resource in lawmaking, and on the other hand, expands the catalog of collective rights and freedoms of citizens.
Gaps in Russian Legislation. 2021;14(6):81-86
pages 81-86 views

Constitutional Guarantee of the Right of Citizens to a Favorable Environment and Accurate Information About its State

Mikulina E.V.

Abstract

The article analyzes the legal regulation of relations to protect the right of citizens to a favorable environment and reliable information about its state. The author raises the question of the approval of biological diversity as a fundamental parameter characterizing the state of the ecosystem of different public-legal levels - the Russian Federation - the constituent entities of the Russian Federation - municipalities. According to the author, this parameter should be considered as the basis for ensuring environmental policy in the Russian Federation. The author proposes the creation of a legal mechanism to provide citizens and organizations with the necessary and significant information about the state of the environment, the need for normative consolidation of such a mechanism for all levels of public authorities.
Gaps in Russian Legislation. 2021;14(6):87-92
pages 87-92 views

For a Discussion About the “Municipal Filter”

Markov R.S.

Abstract

Introduction. The model for elections of top officials of the constituent entities of the Russian Federation, which was restored by amendments to the federal legislation in 2012, differs significantly from the previous regional election campaigns and establishes special conditions for the participation of candidates. These include support for the nomination of a candidate for the post of head of a constituent entity of the Russian Federation by representatives of local authorities elected by the population - municipal deputies and heads of municipal formations, which very quickly received the informal name “municipal filter” among lawyers, political scientists and publicists. Among other novelties of electoral legislation, it is this requirement that has been the subject of sharp criticism for ten years. Materials and methods. In preparing the article, the authors analyzed federal legislation, by-laws, election campaign materials, and judicial practice of the Constitutional Court of the Russian Federation. The main methods used are technical-legal, formal-legal, comparative-legal. Results. The requirement to support the nomination of a candidate for the post of the highest official of a constituent entity of the Russian Federation can be assessed as a complex and contradictory procedure. It performs important functions in controlling the electoral process, ensuring the unity of the Russian public power system, developing local self-government, and strengthening the political and party systems. However, in modern Russian political conditions, the prevalence of a certain political force in local self-government bodies, the “municipal filter” is being transformed from a legal procedure into an instrument of unfair political struggle. Conclusions. The study substantiates the need to preserve and reform the “municipal filter” in terms of reducing the minimum and maximum levels of support for candidates and reducing the territorial coverage of municipalities in the region.
Gaps in Russian Legislation. 2021;14(6):93-100
pages 93-100 views

Effectiveness of the Basel Principles of Financial Supervision of Financial Markets Stability Under the US Dodd-Frank Act and Russian Banking Legislation: A Comparative Legal Analysis

Sorochkin A.A.

Abstract

Introduction. The article in a comparative legal context examines the basic provisions of the "Fundamental Principles for Effective Banking Supervision" of the Basel Committee on Banking Supervision (BCBS), reflected in the US Dodd-Frank Act 2011. and in the Russian banking legislation of the last 10 years. The aim of the work is recommendations and conclusions that allow to track the effectiveness of the implementation of the principles of organizing financial and banking supervision of the BCBS in the United States and Russia in order to prevent crisis situations and ensure the stability of financial markets. The development of the provisions of the US Dodd-Frank Law (last revised 2018) and the norms of the Federal Law of the Russian Federation "On Banks and Banking Activities" (revised 02.07.2021) reflect the dynamics of strengthening the legislative regulation of financial supervision. Comparative analysis helps not only to look critically at the innovations of the US Dodd-Frank Law, but also to identify its most effective provisions that help to eliminate gaps in Russian banking legislation in terms of improving the effectiveness of the BCBS's Basel Principles of Banking Supervision. Materials and methods. The norms of Russian banking legislation, regulatory legal acts of the Central Bank of the Russian Federation, the US Dodd-Frank Act, related US regulatory legal acts, Russian and foreign scientific sources on financial supervision over the stability of financial markets were used. The methods of comparative legal analysis of scientific concepts and foreign sources on the topic of the article were used. Results. It was revealed that the Dodd-Frank Act adopted in the United States changed approaches to the regulation of financial markets, complicated the regulatory system and significantly strengthened financial prudential supervision. Despite the fact that, on the whole, the adopted law had an objectively positive effect on the stability of the US financial system, its individual negative consequences caused serious discontent, which caused further transformation of the legal regulation of financial stability. Russian federal laws and regulations in the banking sector are gradually introducing the BCBS Basel principles, reflecting transformation trends similar to those in the United States, for example, in terms of methods of strengthening supervision over banking groups, holding companies, and systemically important financial institutions. Discussions and conclusions. It seems that certain provisions of the Dodd-Frank Law, as a result of the implementation of the Basel standards of banking supervision, differ from similar legal regulation in the Federal Law of the Russian Federation "On Banks and Banking Activities" and the Federal Law "On the Central Bank of the Russian Federation". This reflects the different doctrinal, conceptual, strategic, monetary approaches of the governments and financial regulators of the United States and Russia to methods of ensuring stability in financial markets. At the same time, the banking legislation of the United States and Russia is constantly being improved in terms of financial supervision of financial markets, implementing the Basel principles in the context of their deepening, softening, and expanded interpretation.
Gaps in Russian Legislation. 2021;14(6):101-109
pages 101-109 views

Topical Problems Employment of Citizens with Mental Disabilities

Chimeev O.B.

Abstract

This article is devoted to the study of legal problems of labor regulation of disabled people suffering from mental illnesses, including gaps in the system of ensuring and fulfilling the legal status of these citizens. The issues of differentiation of the concepts of "employment of citizens" with one of the forms of disability - mental diseases - are touched upon. The article deals with the regulation and differentiation of employment and occupational therapy as general labor guarantees of the individual and additional social support measures. The study of the problems of the implementation of labor rights of persons recognized as disabled, suffering from mental illnesses; a review of the underdevelopment of legal relations; a study of the executive activity of subjects of labor relations; ideas on the modernization of legal norms and improvements of social security measures determine the purpose the present study. To differentiate the foundations of Russian social security among the studied category of citizens, examples of measures and solutions to problems by the State of Japan are given. Tasks: to determine the legal status of persons with disabilities with mental disabilities, as well as the relevant areas of activity of the Russian State; to establish the concepts, goals of occupational therapy and labor activity; to provide reasoned facts about the need to modernize legal norms and improve social security measures. Methodology: private legal methods were used, such as description and comparative jurisprudence, and methods of scientific cognition in the form of a systematic approach.Outcomes: According to the results of the study, we found that the labor process undoubtedly has a positive effect on people suffering from mental illnesses and on this basis recognized as disabled. In institutions, as well as organizations and enterprises, it is planned to conduct both occupational therapy and labor activity. However, Russian legislation does not regulate the issue of differentiation of occupational therapy and work activity. Conclusion: The employment of people with mental illnesses is protected by a weak and unfinished legal field. The current mechanisms of legal regulation of employment do not solve existing problems, complicate the implementation of employment, therefore, the author suggests options for improving legislation.
Gaps in Russian Legislation. 2021;14(6):110-115
pages 110-115 views

Theoretical and Legal Analysis of the Conceptual Apparatus in the Field of Construction and Operation of Linear Objects of the Oil and Gas Complex

Kravtsova A.S.

Abstract

The article is devoted to the study of existing approaches to the definition of the term "linear object" in the current legislation, scientific literature and law enforcement practice, as well as identifying the place of linear objects in the structure of oil and gas facilities. As a result of the conducted research, the conclusion is proved that the modern scientific definition of the oil and gas complex, which means "a group of economic sectors that collectively provide a single technological cycle for the extraction, transportation and processing of oil and gas, as well as related services" does not take into account other linear objects not related to the transportation of oil and gas, which, however, seem to be of sufficient importance to ensure the functioning of the oil and gas complex. According to the author, the modern oil and gas complex of the Russian Federation should be represented as a single vertically integrated technological facility, which includes facilities directly related to the development of oil and gas fields, oil and gas service facilities, as well as oil and gas infrastructure facilities, while linear objects of the oil and gas complex can relate to both objects of the oil and gas service group (main pipeline transport facilities) and oil and gas infrastructure facilities (roads, power lines, railway tracks, etc.). Also, in the absence of regulatory consolidation of the concept of "linear object of the oil and gas complex" in the current legislation, the author formulates its legal concept.
Gaps in Russian Legislation. 2021;14(6):116-121
pages 116-121 views

Legal Regulation of the Activities of the Customs Authorities of the Russian Federation on Protection of Rights to Intellectual Property Objects

Bespalko V.G., Zhdanov S.P., Rudakova E.N.

Abstract

The article is devoted to the study of the mechanism of legal regulation of the activities of Russian customs authorities on the protection of rights to intellectual property objects. The authors consistently analyze the legal framework for the activities of customs authorities to protect intellectual rights, including the sources of international universal law, as well as the law of the Eurasian Economic Union and the national legislation of the Russian Federation. Particular attention is paid to the legal regulation of the suspension by the customs authorities of the period for the release of counterfeit goods, as well as the maintenance of customs registers of intellectual property objects. In addition, the article provides an assessment of the effectiveness of the application by customs authorities of measures of administrative responsibility against infringers of intellectual rights. Based on the results of the study, a general assessment of the current state of legal regulation of this area of activity of customs authorities is given.
Gaps in Russian Legislation. 2021;14(6):122-130
pages 122-130 views

On the Consolidation of Administrative Coercion Measures in the Old Testament Legislation (Based on the Analysis of the Book Deuteronomy of the Mosaic Pentateuch)

Ivanov D.V.

Abstract

This article is devoted to the study of the book of Deuteronomy of the Old Testament of the Mosaic Pentateuch, in order to find the normative provisions fixed in it concerning the application of administrative coercion measures. For this purpose, a comparative analysis of modern administrative legislative norms is carried out in parallel with the prescriptions recorded in the ancient text of the book. Deuteronomy, being the final of the five books of the Mosaic Legislation, most clearly shows various normative prescriptions, many of which were previously simply mentioned in the text as an example of a life event or moral instruction. The book gives specific instructions on the need to apply administrative coercion measures, the obligation of their execution and the inevitability of punishment in case of non-compliance. The importance in the use of coercion is justified by the need for further development of the Hebrew state, since they are the ways to implement the laws of the Lord about their unity. Despite their rigidity and sometimes absurdity, these normative prescriptions show a positive result in the system of administrative management of the ancient Jewish state.
Gaps in Russian Legislation. 2021;14(6):131-136
pages 131-136 views

Administrative Regulations of State Functions at the Present Stage: Dynamics of Changes in the Approach to the Concept and Varieties at the Legal Regulatory

Zelepukin R.V.

Abstract

In this article the author analyses the development of administrative regulations in the system of modern public administration. The state of administrative regulations and their institutionalisation as a result of the administrative reform is noted. It has been identified and found that there has now been a change in the approach to the delineation of the administrative regulations of the executive authorities - before 2018, administrative regulations were divided into service regulations and function regulations, where service regulations are related to requests by private persons to the state represented by its bodies and officials - and function regulations are related to the implementation of continuous activities to perform assigned powers and exercise the established competence, after 2018, administrative regulations are divided into service regulations and control (supervision) regulations. According to the author, the established approach has allowed the above varieties of regulations to be merged into such a group of types of administrative regulations as administrative regulations for the implementation of state functions. Also the author concludes that it is necessary to adopt a special legislative act systemising the functions of the executive authorities and the administrative procedures they carry out in a single logical connection.
Gaps in Russian Legislation. 2021;14(6):137-141
pages 137-141 views

Modern Military Technologies and the Responsibility of a Scientist, Creator, Operator, etc.: Some Approaches of the BRICS Countries

Belikova K.M.

Abstract

Based on the legal material of the BRICS countries the article touches upon the issue of legal responsibility of a scientist, creator, operator, etc. for the implementation of the results of his scientific activities in the field of new military technologies. Interest is caused by the impact on legal and military science, as well as on the ideas of both ordinary people and specialists (lawyers, military, sociologists, etc.) provided by new technologies that currently allow to do things that previously could not even be imagined otherwise than in imaginative literature, films, etc. In this way, the current provisions of normative acts (in the field of legislation on intellectual property), ethical codes, etc., and doctrines (works of specialists who give arguments "pro" and "contra" giving legal personality to artificial intelligence) are examined. Scientific novelty is due, firstly, to the choice of countries - these are the BRICS countries, secondly, the subject of the study is the legal responsibility for the implementation of the results of scientific activity of a scientist in the field of new military technologies, thirdly, the analysis of a selected range of issues in an interdisciplinary aspect - from the standpoint of jurisprudence, military science, ethics. Among the conclusions reached by the author, the inevitability of ethical problems when using AI in civil (for example, transport) and military autonomous systems. In this regard, attempts have been made to solve these problems in the BRICS countries in various ways: from declarative limitations in patent legislation to the development of guidelines and ethical principles that meet the realities. The need to develop a single document with an international legal status on the issue of AI-human interaction, based on the opinions and ideas about the principles of such interaction of more than eighty subjects from around the world is also showed.
Gaps in Russian Legislation. 2021;14(6):142-150
pages 142-150 views

The Procedure for the Implementation of Military-Technical Cooperation and the Delimitation of Ownership Rights to Its Results Between the Brics Countries - the Russian Federation and Brazil, the Russian Federation and South Africa

Akhmadova M.A.

Abstract

The article discusses the procedure for the implementation of military-technical cooperation and the delimitation of ownership rights to its results between the BRICS countries - the Russian Federation and Brazil, the Russian Federation and South Africa. At the same time, the focus of the author's attention is on the transfer and use of previous intellectual property, the distribution of rights to the results of intellectual activity and the procedure for resolving disagreements and disputes between the contracting parties and (or) participants to contracts. The relevance of the study is due to the fact that military-technical cooperation has a strategic role for modern Russia, designed, on the one hand, to strengthen the country's military and political positions in the world, and on the other, serves the purpose of maintaining the country's defense capability and military security at the proper level. The research conducted based on such methods of scientific cognition as: general scientific dialectical, formal legal and comparative legal methods, etc. At the same time, the author proceeds from the subjective-objective determination of processes and phenomena, and their interconnectedness. The novelty of this research is determined by its very purpose, subject and range of sources under consideration. In this format, the author came to the conclusion that the approaches of the BRICS countries under consideration on some key aspects of regulating the protection of intellectual property, both transferred and created within the framework of military-technical cooperation, are largely similar. At the same time, the regulation of the use of the results of intellectual activity is the basis of relations between the Russian Federation and the BRICS countries in military-technical cooperation and is aimed at excluding unauthorized use of such products, therefore, the conclusion is formulated that the regulatory framework in the field of military-technical cooperation in terms of its international legal component on ensuring the protection of intellectual property transferred and received within the framework of such cooperation needs further improvement.
Gaps in Russian Legislation. 2021;14(6):151-156
pages 151-156 views

On the Issue of Assessing the Social Impact of Social Entrepreneurship

Netesova M.S.

Abstract

Purpose of research. The purpose of the study is to develop a legal approach to assessing the social impact of such a phenomenon as social entrepreneurship. In accordance with the current legislation, social entrepreneurship is carried out in order to solve certain acute social problems facing society. There is an urgent need to assess to what extent this activity solves the task, in other words, to determine the level of social impact exerted by the category of social entrepreneurs. Currently, the current regulatory legal acts do not contain criteria for such an assessment. Conclusions. The analysis of certain types of social entrepreneurship and the current procedure for recognizing small and medium-sized businesses as social enterprises allowed us to identify quantitative indicators characterizing the social impact of certain types of social entrepreneurship. In addition, quantitative and qualitative indicators are proposed that can be used to evaluate those social enterprises whose activities cannot be evaluated on the basis of so-called "obvious" quantitative indicators. It is concluded that it is necessary to submit a report on the social impact of a small or medium-sized business entity applying for inclusion in the register of social entrepreneurs.
Gaps in Russian Legislation. 2021;14(6):157-161
pages 157-161 views

Renovation as a Way to Abolish the Institution of Private Property

Sokolenko N.N.

Abstract

The presented article examines the problems of implementation of the basic constitutional principle - the principle of inviolability of private property. The author analyzed the main forms of implementation of this principle in activities that arose as a result of the adoption of the Federal Law of December 30, 2020 No. 494-FZ "On Amendments to the Urban Planning Code of the Russian Federation and certain legislative acts of the Russian Federation in order to ensure the integrated development of territories." On the basis of the established practice, the necessity of changing a number of norms of the Urban Planning Code of the Russian Federation, the Housing Code of the Russian Federation, the Land Code of the Russian Federation, ensuring the implementation of the principle of inviolability of private property, was identified and substantiated.
Gaps in Russian Legislation. 2021;14(6):162-170
pages 162-170 views

Joint Bankruptcy of Spouses: Problems and Prospects of the Establishment of New Institution

Mordukhaev M.O.

Abstract

Purpose of the research. The institution of bankruptcy is relatively new to the Russian reality. Nevertheless, it develops quickly. Bankruptcy is current among both legal entities and individuals and individual entrepreneurs. Socio-economic situation caused by the spread of coronavirus infection COVID-19 actualizes the problem of bankruptcy procedures. Despite the dynamic development of the legal regulation of bankruptcy, nowadays legislation don’t establish the joint bankruptcy of spouses. At the same time, in some court decisions there are positions according to which the bankruptcy procedure is carried out in relation to both spouses at once. The purpose of the research is to study and analyze the prospects and risks of introducing the institution of joint bankruptcy of spouses in the Russian Federation, analyze this institution in foreign countries, as well as to study judicial practice in the field of joint bankruptcy of spouses in the Russian Federation. Results. As a result of the study, several main results were drawn. The absence of the institution of joint bankruptcy of spouses in the Russian Federation is a legislative gap; this approach does not correspond to the modern dynamics of the development of public relations in the field of bankruptcy. Among the main advantages of joint bankruptcy of spouses, such advantages were identified as procedural savings, savings in legal costs, the creation of one register of creditors for two debtors at the same time, the possibility of considering a bankruptcy case of a spouse in one proceeding. The arguments of the courts used to refuse to combine bankruptcy cases of two spouses into one proceeding were analyzed. The author also studied and analyzed the provisions of the Draft Federal Law No. 835938-7 in the aspect of joint bankruptcy of the spouses, as a result of which the risks and disadvantages of the proposed rules were formed.
Gaps in Russian Legislation. 2021;14(6):171-178
pages 171-178 views

Digital Market and Digital Platform: Distinction for Antimonopoly Regulation Purposes

Yaremchuk A.V.

Abstract

The article is reflected the issues of antimonopoly regulation of new product markets caused by active digitalization. The aim of the paper is to consider the specific features of digital markets that distinguish them from commodity markets in the traditional view, differentiate between the concepts of “digital market” and “digital platform”, compare the concepts offered in different jurisdictions, as well as the problem of insufficient legislative regulation. The author concluded that there are several approaches in the practice in Russia and other countries in terms of the definition of digital markets. The author analyzed the possible negative consequences of the specific characteristics of digital platforms.
Gaps in Russian Legislation. 2021;14(6):179-183
pages 179-183 views

Taxpayer as a Subject of Proving in the Tax Process

Orlova N.A.

Abstract

Purpose of the study. The article examines the problems of the taxpayer being audited lacking the rights to implement an active position of assistance in collecting evidence, verifying and evaluating it, protecting rights and legitimate interests in the tax process. Proofing is the most important element of tax control today, which makes it possible to objectively establish the circumstances of the commission of a tax offense, the guilt of the inspected payer, its form, and also to qualify the committed act. Exactly the evidences those determines the type and degree of legal responsibility in this connection, the participation of a taxpayer in proving a tax violation is a necessary condition for protecting his rights and interests, excluding the possibility of illegal tax prosecution. Conclusions. As a result of the study, objective grounds were identified for the need to expand the subjective rights of a taxpayer in the tax process to ensure the possibility of participation in the collection and assessment of evidence. The proposed procedure for submitting applications and their consideration allows the taxpayer to declare his position on the need for certain tax control measures both during the course of a tax audit and outside of it, and from the tax authority to obtain additional legitimate evidence for the objective imputation of a tax offense. The author has developed specific amendments to be made to the Tax Code of the Russian Federation in order to protect the rights and interests of the taxpayer and streamline the procedure for considering the application.
Gaps in Russian Legislation. 2021;14(6):184-189
pages 184-189 views

Summary Proceedings of Resolving Claims in Civil Proceedings

Staritsyn A.Y.

Abstract

The purpose of the research. The article discusses summary procedure of considering civil cases by analyzing each of its stages. The purpose of the research is to assess the provisions of the current civil procedural legislation of summary proceedings to determine the effectiveness of the implementation of the relevant legal norms, as well as to identify ways to reform them. This is necessary because the issue of excessive judicial burden becomes more acute every year, and the norms of Chapter 21.1. The Code of Civil Procedure of the Russian Federation is not perfect and does not contribute to the cardinal resolution of the problem of the judicial system. Results. The article states the fragmentation and relative incoherence of legal norms on summary proceedings in civil proceedings. It becomes obvious that the norms of Chapter 21.1. The Code of Civil Procedure of the Russian Federation does not provide for a comprehensive legal regulation of a special procedure for resolving civil cases; most of the essential aspects are contained in the official explanations of the country's highest judicial body. The author highlights certain problems of four stages of the process in summary proceedings: initiation of a case, preparation for trial, resolution of the case on the merits and delivery of a decision by the court. In parallel, the author puts forward proposals for resolving the identified legal problems.
Gaps in Russian Legislation. 2021;14(6):190-198
pages 190-198 views

The Concept and Content of the Admissibility of Evidence in Civil Proceedings

Panova K.O.

Abstract

The article analyzes the approaches to the concept and content of the admissibility of evidence formed in the theory of civil procedural law. In science, the admissibility of evidence is considered as a restriction by law of possible sources of information about facts of interest to the court, and the establishment of the procedure for collecting evidence. The norms of the articles of the procedural codes don’t detail the rule of admissibility of evidence, but actually contain a reference to the norms of procedural law, which may make it difficult for the court to determine whether evidence has been obtained in violation of the law. The analysis of judicial practice allowed the author to formulate a definition of the admissibility of evidence, to distinguish the criteria concerning its content.
Gaps in Russian Legislation. 2021;14(6):199-202
pages 199-202 views

Pharmaceutical Law: Criminal Aspects

Serebrennikova A.V.

Abstract

The author, considering the possibility of the emergence of a new branch of law in the future - pharmaceutical law, focuses on the complexity of regulating the sphere of turnover of medicines, at the same time pointing to this as the main reason for the uncertainty of the legislator in matters of the correctness of the choice of the object and subject of legal regulation. The author, citing examples from practice, draws attention to the fact that pharmaceutical activity is gradually becoming the object of regulatory regulation of various legal institutions, where the turnover of medicines, as well as medicines and other products containing raw materials of a medicinal nature, can be subject not only to the rules of civil turnover, as well as other special acts, but also to the norms of criminal law. The purpose of the study: To analyze the criminal legislation of the Russian Federation, including articles of the Criminal Code that establish responsibility for crimes in the field of pharmaceutical criminal law. Methodology and methods: the article uses both general scientific methods of analysis, synthesis, deduction, induction, and the method of interpretation of legal norms, which together make it possible to more effectively analyze the institutions of criminal law and determine the directions of development of the norms of pharmaceutical criminal law. Conclusions: as a result of the study, the author consistently substantiated the conclusion that the scope of application of criminal legislation in the control of pharmaceutical activities is expanding, at the same time, frequent violation of established prohibitions and regulations in the turnover of medicines suggests that the dialectical component of this issue is in an active phase of development, which indicates the inevitability (regularity and expediency) of the separation of a group of norms into a relatively autonomous group, which may be called pharmaceutical criminal law.
Gaps in Russian Legislation. 2021;14(6):203-209
pages 203-209 views

Selected Problems of Law Enforcement of the Federal Law "On the Fundamentals of the Crime Prevention System in the Russian Federation"

Afanaseva O.R., Goncharova M.V.

Abstract

Purpose of the study. The issues of prevention of offenses are among the topical, attracting the attention of not only scientists, but also practitioners. The current Federal Law No. 182-FZ of 23 June 2016. "On the basis of the system of prevention of offences in the Russian Federation". (hereinafter - the Law) is considered as the basic normative legal act regulating only some aspects of prevention of offences. The purpose of the study is to identify and determine gaps in the legal regulation of prevention of offenses. Conclusions. As a result of the analysis of the content of the Law, law enforcement practice, official statistical data characterizing prevention activities, the authors presented a general characteristic of the noted Law, recognizing it not only as a modern legal basis for prevention of offenses, but also as a basis for formation of criminological legislation. Also the authors highlighted a number of problems of law enforcement of the Law that need to be resolved, including: lack of indication in the law of current contemporary criminal threats, such as prevention of destructive behavior and criminal subculture among youth, ensuring information security, etc.; terminological ambiguity that prevents uniform interpretation; legal uncertainty of the established system of prevention accounting; lack of consolidation of victimization prevention provisions in the Russian Federation
Gaps in Russian Legislation. 2021;14(6):210-214
pages 210-214 views

To the Question of Improving the Institute of Criminal Responsibility in a Pandemic

Gelyakhova L.A., Kumysheva M.K.

Abstract

The global pandemic caused a serious change in the legislation of the Russian Federation, since the fight against the spread of the new coronavirus infection required the development and implementation of effective mechanisms that had not previously been used on a similar scale. In this context, the amendments introduced on April 1, 2020 to the criminal legislation in terms of toughening of liability for violations of sanitary and epidemiological rules and the introduction of new criminal law norms, securing responsibility for the public dissemination of knowingly false information of a certain content, have acquired a significant influence. very timely and justified, however, the further spread of the new coronavirus infection in the territory of the Russian state objectively necessitates the corresponding changes and other criminal law norms. The purpose of the presented study is to study the institution of criminal responsibility and its development in the context of the novel coronavirus infection (COVID-19) pandemic. The authors come to the conclusion that, despite the progressive nature of the Russian criminal legislation in terms of regulating responsibility for criminal behavior that poses a particular public danger in a pandemic, there are currently a number of areas in which there is a need to develop this institution. Among the most promising there are the consolidation of criminal liability for the sale and purchase of the results of medical research conducted as part of the diagnosis and treatment of a new coronavirus infection, and vaccination certificates, as well as the sale and purchase of pseudo-drugs and pseudo-medicines that allegedly allow curing new strains of coronavirus infection or preventing infection by them. The significant potential of criminal law norms for the development of preventive and preventive activities in relation to the spread of criminal behavior in a pandemic is noted.
Gaps in Russian Legislation. 2021;14(6):215-220
pages 215-220 views

Criminological Aspects of Formation and Development of Professional Crime in Russia

Kravets I.P.

Abstract

The article examines the formation and development of professional crime in Russia, its tendencies and patterns of development, as well as the personality of a professional criminal, since the study of recidivism and professional crime and the fight against it are an important task of the state. The significance of this struggle is determined by the negative influence of repeat offenders and professional criminals on the reproduction of primary crime and thereby complicating the criminal situation in the country. The solution to this problem, despite the measures taken, is complicated by the non-homogeneity of the personality of professional criminals, the persistence of their antisocial behavior, the continuation of criminal activity and the spread of the criminal subculture. The purpose of the presented study is to consider the issues arising in this area concerning the formation and development of professional crime in Russia as a whole, its tendencies and patterns of development. Since this type of crime is isolated from the rest of the mass of crimes by such a rather important feature, such as the fact that not one person takes part in its manifestations, but a whole group of people, quite significant in terms of quantitative composition. Analyzing the connection of a professional criminal with an asocial environment, it becomes clear that a person who has embarked on a criminal path refuses generally accepted social norms of behavior. It acquires completely different features characteristic of a particular antisocial group. The systematic conduct of an antisocial way of life gives the criminal a psychological need to communicate with the environment that is close to his own idea of the way of life. On the other hand, the very existence of this environment often determines the further behavior of the criminal. It is in this environment that such persons find support, moral incentives and experience. The relationship of the criminal with the criminal environment is more clearly observed in the forms of his communication with others. He can be a member of a criminal group, visit places of gatherings of criminal elements, keep in touch with other criminals, etc. Only in the criminal environment do professional criminals find support and protection from both law enforcement agencies and the surrounding criminal environment. Based on the study, the author comes to the conclusion that professional crime is a relatively independent type of crime, which includes a set of crimes committed by professional criminals on the basis of special knowledge, experience and skills, which is stable and is a source of com of their livelihood.
Gaps in Russian Legislation. 2021;14(6):221-229
pages 221-229 views

Conceptual Foundations of Criminal Law Protection of Competition

Dosova Z.K.

Abstract

The purpose of the research. The scientific article is aimed at identifying topical problems of the criminal law protection of competition, as well as finding promising ways to solve them. The study was carried out through a critical analysis of the criminal legislation that ensures the protection of economic competition, comparison and assessment of the points of view presented in the doctrine on the problems existing in this area of scientific knowledge. Results. The scientific article highlights the shortcomings of the current legislation providing criminal legal protection of competition. The author points out a clear imbalance in the practice of applying the articles of the criminal law aimed at protecting competition, many of which remain inoperative. According to the author, the elimination of the existing shortcomings is impossible without scientific substantiation of the concept of countering these crimes. Increasing the effectiveness of the norms of the criminal law aimed at counteracting encroachments on competition is associated, first of all, with strengthening the preventive potential of the current legislation. The author pays special attention to the shortcomings and gaps in the legal structure of Art. 178 of the Criminal Code of the Russian Federation. The solutions are proposed to improve the efficiency of the criminal law countering the restriction of competition. Namely: to reduce the provisions provided for in Art. 178 of the Criminal Code of the Russian Federation the amount of damage caused by the act, as well as illegally obtained income; stipulate in art. 178 of the Criminal Code of the Russian Federation, a complete list of ways to restrict competition.
Gaps in Russian Legislation. 2021;14(6):230-234
pages 230-234 views

Retrospective Analysis of the Development of Criminal Responsibility for Disorganizing the Activities of Institutions Providing Isolation of Consumed from Society

Meshcheryakov P.A.

Abstract

The purpose of the research. In the Russian penal system, one of the most common punishments was imprisonment and isolation from society. In the process of executing these punishments, problems have always arisen and arise related to their implementation. One of the key issues in this area is the problem of improving measures to combat actions that disorganize the activities of correctional institutions. For several decades, Soviet legislation changed the legislative concept of criminal liability for actions related to the disorganization of the activities of correctional institutions and looked for effective methods to combat this type of crime. The article examines the historical and legal trends in the development of criminal responsibility for violent actions against convicts (prisoners) and personnel of institutions that provide isolation from society at different historical stages. The work is based on the analysis of scientific literature and legislative acts establishing measures of responsibility for actions related to the disorganization of the activities of correctional institutions. The main purpose of this work is to pose the problem of criminal responsibility for the disorganization of the activities of correctional institutions and to identify the causes and conditions conducive to the commission of these crimes. Conclusions. As a result of a retrospective analysis of the content of responsibility for violent actions against convicts (prisoners) and personnel of institutions that ensure isolation from society, at different historical stages, it can be concluded that in different periods of the economic downturn in Russia, responsibility for such actions increased. In addition, attention is drawn to the fact that the rules concerning the problem under consideration have always existed and there was a search aimed at effective ways to counter this phenomenon, but the solutions have not been formulated until today. Currently, the issues related to the disorganization of the activities of correctional institutions at the legislative level have been resolved. At the same time, the effectiveness of these methods of counteraction remains insufficient.
Gaps in Russian Legislation. 2021;14(6):235-240
pages 235-240 views

Criminal Liability for Causing Death by Negligence: Problems of Legal Regulation and Practice

Dmitrieva A.V.

Abstract

The purpose of the research. The article deals with the problems of legal regulation and the practice of applying criminal penalties for causing death by negligence. The article analyzes certain aspects of investigative actions and the appointment of criminal penalties for causing death by negligence in the context of the transformation of the Russian criminal legal system, the ongoing changes in the modern mechanism of legal regulation. The aim of the study is to establish and identify problematic aspects of the legal regulation of investigative actions and the imposition of criminal penalties for causing death by negligence. This looks important from the standpoint of the development of the Russian system of legislation in the context of further democratization of society, a combination of the principles of humanization and the inevitability of punishment. Results. As a result of the study, the author comes to the conclusion that the extremely generalized approaches to determining the corpus delicti in Art. 109 of the Criminal Code of the Russian Federation can lead to a broad interpretation of the objective and subjective side of illegal acts. In investigative actions and law enforcement practice, the mechanism for applying the norms of criminal law from the standpoint of determining the motivation of the subject of criminal actions is not sufficiently developed. The author believes that this situation requires the introduction of both regulatory changes at the level of laws and regulations, and the development of appropriate departmental instructions and recommendations for investigative and judicial authorities.
Gaps in Russian Legislation. 2021;14(6):241-244
pages 241-244 views

Reasons and Conditions for Persuading Minors to Commit Suicide Using the Internet

Serebrennikova M.S.

Abstract

One of the saddest trends of recent times is associated with an increase in suicide cases among children and adolescents. The consequences of informational influence directed at the least protected categories of the Internet audience have signs of mass character. Today, through the use of modern means of communication, crimes against life and health are being committed, which causes irreparable damage, encroaching on national security. Objective of the study: to conduct a criminological analysis of motivated reasons for suicide among minors, such as criminal or driving to suicide. Methodology and methods: the article uses both general scientific methods of analysis, synthesis, deduction, induction, and the method of interpreting legal norms, which make it possible to more effectively analyze the institutions of criminal law and determine the directions of development of the norms of criminal legal protection of the life and health of minors. Conclusions: as a result of this study, the author has consistently substantiated the conclusion that the measures of a criminal-legal nature aimed at bringing to justice persons who persuade or facilitate the commission of suicide by minors are not enough. Taking into account the factor that the consciousness of children is very fragile, and is especially susceptible to external influence, it is necessary to direct resources, including to provide the necessary criminal-legal protection of childhood conservation, as the main factor in the development and socialization of the future generation.
Gaps in Russian Legislation. 2021;14(6):245-249
pages 245-249 views

Methodology for the Participation of the Prosecutor in the Study of Expert Opinions in the Court of Appeal

Pavlova E.V.

Abstract

Purpose of the study: The article discusses the main issues of the participation of the prosecutor in the study of expert opinions in the court of appeal. The effectiveness of this activity depends on its implementation on the correct methodological basis. The author formulates the definition of the concept of the corresponding methodology, considers its components, determines its place in the general methodology for the participation of the prosecutor in the appeal trial. Examples of practice show some typical schemes of actions of a prosecutor participating in a session of the court of appeal, preparing for the examination of expert opinions contested by the defense side, forming his position on this issue and bringing it to the attention of the court. The author formulated the conclusion that this activity of the prosecutor is aimed at assisting the court of appeal in making a lawful and cogent decision regarding the expert's opinion, who, in the opinion of the defense, justified the court's verdict or which was unreasonably excluded from the evidence. An opinion is expressed about the still insufficient use by both the courts of appeal and the prosecutors participating in their sessions of the possibilities for resolving disputed situations by appointing and conducting additional or repeated expert examination. In this regard, a suggestion was made to establish in the Code of Criminal Procedure of the Russian Federation a norm obliging the court to use this opportunity.
Gaps in Russian Legislation. 2021;14(6):250-254
pages 250-254 views

Forms of Participation and Powers of the Prosecutor at the Stage of Initiation of a Criminal Case

Lukozhev K.M.

Abstract

The article examines the problems of the role, functions and powers of the prosecutor at the stage of initiation of a criminal case. The procedural status of the prosecutor, as an official exercising the functions of supervision, criminal prosecution, coordination, heading the "prosecutorial authority", presupposes his ability to dispose of criminal prosecution, including launching it by initiating a criminal case, changing the vectors of criminal prosecution and abandoning it by terminating criminal prosecution or the entire criminal case. Based on the results of the analysis of the norms of criminal procedure legislation, possible forms of participation of the prosecutor in the stage of initiation of a criminal case are identified: among which are named: 1. As the initiator of criminal prosecution; 2. As a participant in criminal proceedings, carrying out operational prosecutor's supervision; 3. As an addressee for filing a complaint about the legality of the investigator's or inquirer's decision in accordance with Article 124 of the Code of Criminal Procedure; 4. As a participant in the process, in accordance with 125 of the Code of Criminal Procedure. The conclusion is substantiated that the powers available to the prosecutor are clearly not sufficient for the effective implementation of criminal prosecution.
Gaps in Russian Legislation. 2021;14(6):255-258
pages 255-258 views

Features of the Institution of Civil Action in Criminal Proceedings: Practical Aspects

Volchenko A.V., Lakeeva E.V., Lazarev D.S.

Abstract

The article is devoted to the study of the institution of a civil claim in criminal proceedings, including on the basis of an analysis of the practice of law enforcement with an emphasis on the reasons for the violation by the courts of the current procedural legislation in the framework of the procedure for considering civil claims. The practical aspects of the implementation of the institution of a civil claim in criminal proceedings in the context of violations of the rights of participants in criminal proceedings revealed by the prosecution authorities, who are simultaneously parties in the case of compensation for property damage caused by a crime or property compensation for moral damage in the order of Part 1 of Art. 44 of the Criminal Procedure Code of the Russian Federation (hereinafter - the Code of Criminal Procedure of the Russian Federation). The author's conclusions are based on the fact that compensation for property damage and property compensation for moral damage by filing a civil claim in criminal proceedings is not only the most common way to satisfy the property and non-property interests of the victim of a crime, but also the most complex and changeable way of realizing the corresponding rights of a civil plaintiff. , taking into account the need to take into account, when applying the relevant provisions of the Code of Criminal Procedure of the Russian Federation, the latest practice as the Supreme Court of the Russian Federation, the generalized practice of courts of general jurisdiction and the European Court of Human Rights. Based on the above, the purpose of the study is to analyze the law enforcement practice of implementing the institution of a civil claim in criminal proceedings and to determine the effectiveness of its application.
Gaps in Russian Legislation. 2021;14(6):259-265
pages 259-265 views

Tactical Features of the Inspection of a Vehicle in Order to Detect Objects and Substances of Limited Circulation

Berova J.M., Gauzhaeva V.A.

Abstract

The purpose of this article is to study the tactical features of the use of various methods for inspecting a passenger vehicle and detecting some objects, restricted in circulation, which include weapons, ammunition, explosives and explosive devices, narcotic and psychotropic drugs and substances, as well as items of a criminal encroachment and traces of a crime. To achieve these goals, the work determines the algorithm of actions of employees during the inspection of the vehicle, the sequence of the external and internal inspection, the peculiarities of using the fixation means during the inspection. Determination of the correct tactics for organizing inspection actions, as well as actions for the detection, fixation and seizure of objects and substances prohibited for circulation is the basis for further investigation of crimes, successful prosecution of perpetrators, minimizing appeals against the actions of police officers, increasing their effectiveness. The recommendations given in the work also contribute to ensuring the personal safety of police officers and other persons participating in the examination. The results can be used for further theoretical research, the preparation of scientific papers and for solving practical problems in the field of forming the knowledge of a police officer on conducting search operations in various conditions.
Gaps in Russian Legislation. 2021;14(6):266-270
pages 266-270 views

The Use of the Media for the Implementation of Operational-Search Activities of the Internal Affairs Bodies

Borovikov V.B., Borovikova V.V.

Abstract

The purpose of the article is to show the positive possibilities of using the media for operational investigative activities. For this purpose, the tasks related to the reflection of modern experience in the activities of Russian internal affairs bodies were solved, promising areas of cooperation between law enforcement agencies and representatives of the media were identified, including the role of the media in initiating the discussion of legal issues related to operational-search activities. The main research method for this article was the content analysis of materials related to the activities of the internal affairs bodies, published, located, reviewed in the print media, television and radio broadcasts, as well as the Internet. Conclusions of the study. The results of the study show that in recent years, the coverage of the activities of the internal affairs bodies has to some extent improved in the Russian Federation. However, there are still reserves, which are discussed in this publication. The scientific significance of the article lies in the fact that it makes a certain contribution to the theory and practice of interaction between subdivisions of internal affairs bodies that carry out operational investigative activities with the media. The practical significance of the article. The material contained in the article can be used for interaction between the media and the police departments, carrying out operational-search activities.
Gaps in Russian Legislation. 2021;14(6):271-275
pages 271-275 views

Problems of Evidentiary Significance of Some Types of Forensic Examinations

Kocumbas S.M., Lyakhova D.A.

Abstract

The paper discusses problematic issues related to the use of the results of rare types of expert research in evidentiary activities, provides reasoned positions on this matter of practicing lawyers and domestic jurists. The topic of the search for the optimal mechanism of their application, including in operational investigative activities, is discussed. The purpose of the study. Using the example of the examination of human odor traces and the forensic psychological examination of the reliability of testimony, consider the factors preventing their implementation within the framework of Russian legal realities. Conclusions. The results of the analysis showed the prospects of expert research of this kind in the case of solving organizational and methodological problems.
Gaps in Russian Legislation. 2021;14(6):276-280
pages 276-280 views

Participation of a Specialist in Working with Computer Traces in the Investigation of Economic Crimes

Komov A.V.

Abstract

The author of the article, in the course of the study, found that in the period from 2010 to 2020, the number of crimes committed using high technologies increased by more than 35 times, while simultaneously reducing the number of economic crimes committed (by 162%). In the course of a detailed analysis of statistical data and the reasons that contributed to this, a relationship was established between quantitative changes in economic crimes committed and crimes committed using high technologies, which is graphically demonstrated, where the lines of changes expressed in percentage terms run almost parallel. For the above reasons, computer traces acquire special relevance in the identification, disclosure and investigation of economic crimes, special knowledge about the features of which may entail the destruction, damage or modification of the information available on them. That is why a number of forensic scientists attach great importance to the participation of a specialist in the detection and seizure of computer traces containing information about economic crimes. During the writing of the article, the reasons for the decrease in the number of studies conducted and examinations carried out that are directly related to computer traces were identified, and a number of problems that arise in practice when working with computer traces were identified.
Gaps in Russian Legislation. 2021;14(6):281-286
pages 281-286 views

Practical Aspects of the Agreement on Technical Barriers to Trade Application in the Context of Russia's WTO Membership

Pokrovskaia N.V.

Abstract

The purpose of the study. The article reveals the legal features of the application and implementation of the World Trade Organization (WTO) rules in relation to the technical barriers established by its member states in relation to their own manufacturers’ products and imported products as well. To do this, the major provisions of the Agreement on Technical Barriers to Trade are analyzed, the scope of its application, governmental material and legal obligations, institutional and procedural provisions on the establishment of technical requirements for the products sold are highlighted. The analysis of these points is necessary to establish specific legal grounds for the introduction of technical regulations, standards and conformity assessment procedures on the territory of Russia in the conditions of our country's membership in the WTO. Conclusions. As a result of this research, it was found that in the WTO law there is a system of criteria for the legality of establishing regulations and standards for products sold, which allows justifying the protection of citizens’ health and interests, national security and public morality as their goal. The justification procedure provided for in WTO law makes it possible to prove good faith of the actions of a WTO member State. The author concludes that there is still a risk of applying these requirements in order to protect domestic producers’ interests by prohibiting the sale of imported goods that do not meet the specific requirements of the domestic market.
Gaps in Russian Legislation. 2021;14(6):287-291
pages 287-291 views

Features of the Introduction of Restrictive Measures in Emergency Situations

Grechkina O.V., Shmaliy O.V.

Abstract

The purpose of the research. The article is devoted to the problematic issues of introducing restrictive measures in emergency situations arising due to the reorientation of legal regulation, the increased activity of regime rule-making and entailing the expansion of the discretionary powers of the authorities. It has been established that the extraordinary circumstances that have arisen in connection with the coronavirus pandemic have given rise to the problem of expanding the discretionary powers of the authorities, which is based mainly on by-laws. Conclusions. As a result of the study, the authors come to the conclusion that the adopted acts are not formally normative legal acts. At the same time, compliance with the measures that form the content of such documents is a necessary condition for overcoming negative epidemiological factors, and therefore should become mandatory.
Gaps in Russian Legislation. 2021;14(6):292-297
pages 292-297 views

This website uses cookies

You consent to our cookies if you continue to use our website.

About Cookies