Pub Date : 2024-02-19DOI: 10.17803/1994-1471.2024.158.1.179-18
O. I. Ilinskaya
The paper is devoted to the study of the views on the problem of the influence of a fundamental change in circumstances on the operation of treaties that existed in the science of international law before the adoption of the Vienna Convention on the Law of International Treaties of 1969. The author analyzes the following approaches, common in international legal science, to the problem of applying the rebus sic stantibus clause in interstate contractual practice: its unconditional support; her denial; recognition of the admissibility of using a clause in the presence of a number of conditions.Based on the study of special scientific literature, conclusions are drawn regarding the validity and acceptability of each of the approaches, which to a certain extent contributes to a proper understanding of the true meaning of the current conventional norm on the impact of a fundamental change in circumstances on international treaties. An analysis of the first approach, which assumes the right of any of the states party to the treaty to refuse to implement it in the event of such a change in circumstances that seriously affects the fundamental rights of this state, leads to the conclusion that in the absence of clear criteria for the use of a clause, it is almost impossible to reliably answer the question of whether after a change in circumstances, the implementation of the contract will threaten the fundamental rights of the state. The denial of the rebus sic stantibus clause was argued either by challenging its legal essence or by stating its inconsistency with the principle of pacta sunt servanda. The third approach, which is the most realistic, won approval at the UN Vienna Conference on the Law of Treaties and was normatively enshrined in the Vienna Convention of 1969, which ultimately made it possible to remove uncertainty regarding the impact of a fundamental change in circumstances on the operation of international treaties.
{"title":"Doctrinal Approaches to the Problem of the Influence of a Fundamental Change in Circumstances on the Operation of Treaties","authors":"O. I. Ilinskaya","doi":"10.17803/1994-1471.2024.158.1.179-18","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.179-18","url":null,"abstract":"The paper is devoted to the study of the views on the problem of the influence of a fundamental change in circumstances on the operation of treaties that existed in the science of international law before the adoption of the Vienna Convention on the Law of International Treaties of 1969. The author analyzes the following approaches, common in international legal science, to the problem of applying the rebus sic stantibus clause in interstate contractual practice: its unconditional support; her denial; recognition of the admissibility of using a clause in the presence of a number of conditions.Based on the study of special scientific literature, conclusions are drawn regarding the validity and acceptability of each of the approaches, which to a certain extent contributes to a proper understanding of the true meaning of the current conventional norm on the impact of a fundamental change in circumstances on international treaties. An analysis of the first approach, which assumes the right of any of the states party to the treaty to refuse to implement it in the event of such a change in circumstances that seriously affects the fundamental rights of this state, leads to the conclusion that in the absence of clear criteria for the use of a clause, it is almost impossible to reliably answer the question of whether after a change in circumstances, the implementation of the contract will threaten the fundamental rights of the state. The denial of the rebus sic stantibus clause was argued either by challenging its legal essence or by stating its inconsistency with the principle of pacta sunt servanda. The third approach, which is the most realistic, won approval at the UN Vienna Conference on the Law of Treaties and was normatively enshrined in the Vienna Convention of 1969, which ultimately made it possible to remove uncertainty regarding the impact of a fundamental change in circumstances on the operation of international treaties.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"89 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140451718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-19DOI: 10.17803/1994-1471.2024.158.1.155-165
S. Y. Karpov, A. Y. Ponimaskin
The paper examines a range of issues related to the influence of the level of training and competence of the expert on the quality and timeliness of forensic fire safety and technical expertise. The current state of the specifics of such a training in educational institutions at Forensic Expertise Programs (Engineering and Technical Expertise specialization) is analyzed. The authors propose some recommendations and ways to solve some problems in this regard. The authors believe that the current state of training of fire technical experts requires some changes. This is due to many factors, for example, an increase in the range of tasks to be solved, the emergence of new specializations (subtypes of forensic fire safety and technical examination), the introduction of new technologies and expert equipment, reengineering of scientific and methodological support for the activities of a fire safety and technical expert, etc. In the paper, the authors pay special attention to the criteria for selecting applicants to universities and the features of training future experts. It is proposed to make some changes to the regulatory documents for the preparation (training) of fire safety and technical experts at Forensic Expertise Programs (Engineering and Technical Expertise specialization).
{"title":"Specific Features of a Fire Safety and Technical Expert Training","authors":"S. Y. Karpov, A. Y. Ponimaskin","doi":"10.17803/1994-1471.2024.158.1.155-165","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.155-165","url":null,"abstract":"The paper examines a range of issues related to the influence of the level of training and competence of the expert on the quality and timeliness of forensic fire safety and technical expertise. The current state of the specifics of such a training in educational institutions at Forensic Expertise Programs (Engineering and Technical Expertise specialization) is analyzed. The authors propose some recommendations and ways to solve some problems in this regard. The authors believe that the current state of training of fire technical experts requires some changes. This is due to many factors, for example, an increase in the range of tasks to be solved, the emergence of new specializations (subtypes of forensic fire safety and technical examination), the introduction of new technologies and expert equipment, reengineering of scientific and methodological support for the activities of a fire safety and technical expert, etc. In the paper, the authors pay special attention to the criteria for selecting applicants to universities and the features of training future experts. It is proposed to make some changes to the regulatory documents for the preparation (training) of fire safety and technical experts at Forensic Expertise Programs (Engineering and Technical Expertise specialization).","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"2 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139958892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-19DOI: 10.17803/1994-1471.2024.158.1.166-178
E. Y. Gerasimova
The paper is devoted to the analysis of investigative situations that may arise at different stages of the investigation of a crime under Article 273 of the Criminal Code of the Russian Federation: creation, distribution and use of malicious software. Based on the data presented, the opinions of scientists and scientific literature, the need for a more precise study of the circumstances under which this or that investigative situation is considered at the initial and subsequent stages of the investigation was identified, since there are a huge number of combinations of circumstances. In this regard, we propose to highlight certain types of circumstances of investigative situations that arise at the initial and subsequent stages of the investigation, describe possible options for their forms and then, based on the tasks that arise for the investigator and law enforcement agencies in connection with them, describe recommended actions that could allow you to solve problems during the preliminary investigation and achieve a legal decision within the framework of the preliminary investigation.
{"title":"Investigative Situations Arising at the Initial and Subsequent Stages of Investigating the Creation, Distribution and Use of Malicious Software","authors":"E. Y. Gerasimova","doi":"10.17803/1994-1471.2024.158.1.166-178","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.166-178","url":null,"abstract":"The paper is devoted to the analysis of investigative situations that may arise at different stages of the investigation of a crime under Article 273 of the Criminal Code of the Russian Federation: creation, distribution and use of malicious software. Based on the data presented, the opinions of scientists and scientific literature, the need for a more precise study of the circumstances under which this or that investigative situation is considered at the initial and subsequent stages of the investigation was identified, since there are a huge number of combinations of circumstances. In this regard, we propose to highlight certain types of circumstances of investigative situations that arise at the initial and subsequent stages of the investigation, describe possible options for their forms and then, based on the tasks that arise for the investigator and law enforcement agencies in connection with them, describe recommended actions that could allow you to solve problems during the preliminary investigation and achieve a legal decision within the framework of the preliminary investigation.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"46 15","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140452311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-18DOI: 10.17803/1994-1471.2024.158.1.132-138
N. T. Yaraliev
Failure to enforce a criminal sentence is traditionally viewed through the prism of the responsibility of the one who ensures enforcement of a sentence and the one to whom the sentence is assigned for enforcement. Meanwhile, criminal and penal legislation provides for a number of situations when the imposed sentence is not carried out based on considerations of expediency. Such a failure to enforce may be complete or partial, conditional or unconditional. This practice is quite common in law enforcement. Attention is given to the imperfection of legislation on the failure to enforce a sentence, to fundamental inaccuracies in its application in practice, and proposals are made to improve criminal law policy in this direction.
{"title":"Legal Nature of Failure to Enforce a Sentence","authors":"N. T. Yaraliev","doi":"10.17803/1994-1471.2024.158.1.132-138","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.132-138","url":null,"abstract":"Failure to enforce a criminal sentence is traditionally viewed through the prism of the responsibility of the one who ensures enforcement of a sentence and the one to whom the sentence is assigned for enforcement. Meanwhile, criminal and penal legislation provides for a number of situations when the imposed sentence is not carried out based on considerations of expediency. Such a failure to enforce may be complete or partial, conditional or unconditional. This practice is quite common in law enforcement. Attention is given to the imperfection of legislation on the failure to enforce a sentence, to fundamental inaccuracies in its application in practice, and proposals are made to improve criminal law policy in this direction.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"1 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139959343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-18DOI: 10.17803/1994-1471.2024.158.1.139-147
E. K. Antonovich
The issues of accusation have always attracted the attention of both law enforcement officials and scientists. In the modern Russian criminal procedural legislation, the accusation has undergone changes, but its essence and significance do not lose relevance and still attract the attention of scientists and practitioners. This is due to the development of the adversarial principle, under which the function of the prosecution must be separated from the function of the defense. The use of information technology should guarantee the collection of not only incriminating, but also exculpatory evidence, based on the purpose of criminal proceedings. In this regard, questions are being considered about the possible development of the institution of accusation in the conditions of digitalization. Of particular interest is the analysis of legislation taking into account its development in retrospect. Studying the positive legislative experience of some foreign countries is also of some interest, since this experience can be used to improve Russian legislation.
{"title":"Genesis of the Institution of Accusation","authors":"E. K. Antonovich","doi":"10.17803/1994-1471.2024.158.1.139-147","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.139-147","url":null,"abstract":"The issues of accusation have always attracted the attention of both law enforcement officials and scientists. In the modern Russian criminal procedural legislation, the accusation has undergone changes, but its essence and significance do not lose relevance and still attract the attention of scientists and practitioners. This is due to the development of the adversarial principle, under which the function of the prosecution must be separated from the function of the defense. The use of information technology should guarantee the collection of not only incriminating, but also exculpatory evidence, based on the purpose of criminal proceedings. In this regard, questions are being considered about the possible development of the institution of accusation in the conditions of digitalization. Of particular interest is the analysis of legislation taking into account its development in retrospect. Studying the positive legislative experience of some foreign countries is also of some interest, since this experience can be used to improve Russian legislation.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"299 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140452371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-18DOI: 10.17803/1994-1471.2024.158.1.148-154
T. S. Dvoryankina
The paper examines debatable issues of content when considering in cassation proceedings caused by incorrect application of significant violations of the criminal law and significant violations of the criminal procedural law that influenced the outcome of the case. The types of violations of criminal and criminal procedural laws that are recognized by the courts as significant and influencing the outcome of the criminal case are shown. It is substantiated that the grounds established in the law for the court of cassation for canceling and changing a sentence that has entered into legal force do not contain any uncertainty and are interpreted uniformly by courts of general jurisdiction. Identifying significant violations of the criminal and criminal procedural law that influenced the outcome of the case, the cassation court is obliged to check if lower courts comply with the requirements of the criminal procedural law on establishing the factual circumstances of the criminal case, the requirements of the procedural form, the correct application of the criminal law when qualifying the actions of the defendant, the requirements of the criminal the law on the fairness of the imposed punishment, the correctness of resolving issues of compensation for damage caused by a crime, the correctness of determining the type and amount of punishment, the type and regime of a correctional institution, fulfillment of the requirements for a court decision, etc. It is concluded that checking the legality of a sentence or other court decision involves checking its validity, motivation and fairness, without which it is impossible to determine the correct application of criminal and criminal procedural law by the courts.
{"title":"On Significant Violations of the Law that Influenced the Outcome of the Case","authors":"T. S. Dvoryankina","doi":"10.17803/1994-1471.2024.158.1.148-154","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.148-154","url":null,"abstract":"The paper examines debatable issues of content when considering in cassation proceedings caused by incorrect application of significant violations of the criminal law and significant violations of the criminal procedural law that influenced the outcome of the case. The types of violations of criminal and criminal procedural laws that are recognized by the courts as significant and influencing the outcome of the criminal case are shown. It is substantiated that the grounds established in the law for the court of cassation for canceling and changing a sentence that has entered into legal force do not contain any uncertainty and are interpreted uniformly by courts of general jurisdiction. Identifying significant violations of the criminal and criminal procedural law that influenced the outcome of the case, the cassation court is obliged to check if lower courts comply with the requirements of the criminal procedural law on establishing the factual circumstances of the criminal case, the requirements of the procedural form, the correct application of the criminal law when qualifying the actions of the defendant, the requirements of the criminal the law on the fairness of the imposed punishment, the correctness of resolving issues of compensation for damage caused by a crime, the correctness of determining the type and amount of punishment, the type and regime of a correctional institution, fulfillment of the requirements for a court decision, etc. It is concluded that checking the legality of a sentence or other court decision involves checking its validity, motivation and fairness, without which it is impossible to determine the correct application of criminal and criminal procedural law by the courts.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"4 24","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139959300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-17DOI: 10.17803/1994-1471.2024.158.1.102-109
A. V. Guteneva
The paper examines specific features of contractual mechanisms considering trade and corporate agreements. The author compares trade and corporate agreements and reveals the nature of a corporate agreement; determines the conditions of its conclusion and validity; outlines some problems associated with its conclusion and implementation. It is concluded that a corporate agreement has significant specific feature distinguishing it from trade agreements. The current trend in business practice towards strengthening the role of a corporate agreement as a regulator is analyzed. Emphasis is placed on a number of issues that require attention when developing this position: requirements for the form, subject and conditions of a corporate agreement, the relationship between corporate and quasi-corporate agreements, disclosure of information about a corporate agreement, ensuring proper execution of the agreement, application of rules on business agreements. Within the framework of the position classifying a corporate agreement as an entrepreneurial agreement, the author express a point of view that a corporate agreement is a business contract regardless of its parties.
{"title":"Trade and Corporate Agreements: Problems of Correlation and Business Application Trends","authors":"A. V. Guteneva","doi":"10.17803/1994-1471.2024.158.1.102-109","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.102-109","url":null,"abstract":"The paper examines specific features of contractual mechanisms considering trade and corporate agreements. The author compares trade and corporate agreements and reveals the nature of a corporate agreement; determines the conditions of its conclusion and validity; outlines some problems associated with its conclusion and implementation. It is concluded that a corporate agreement has significant specific feature distinguishing it from trade agreements. The current trend in business practice towards strengthening the role of a corporate agreement as a regulator is analyzed. Emphasis is placed on a number of issues that require attention when developing this position: requirements for the form, subject and conditions of a corporate agreement, the relationship between corporate and quasi-corporate agreements, disclosure of information about a corporate agreement, ensuring proper execution of the agreement, application of rules on business agreements. Within the framework of the position classifying a corporate agreement as an entrepreneurial agreement, the author express a point of view that a corporate agreement is a business contract regardless of its parties.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"79 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139960203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-17DOI: 10.17803/1994-1471.2024.158.1.110-118
V. A. Betekhtina
The increase in the number of conflict situations that arise when athletes and coaches are transfered to other employers is due, among other things, to the lack of a unified theoretical approach to the definition of this concept and, therefore, the delimitation of sports transfers from related phenomena. At present, a relatively small number of scientific works are devoted to the classification of sports transfer, which seems to be a significant gap in the theoretical understanding of sports transfers that needs to be filled. The paper proposes a classification of sports transfers depending on the type of jurisdiction to which the subjects of the sports transfer belong (national and international); the period of its implementation (permanent and temporary; its subjects (transfers of athletes and coaches). Some types can be distinguished between from the point of view of forms of labor regulation sports transfer: a) transitions (transfers) based on termination of the employment contract concluded with the previous employer in the manner established by paragraphs 3, 4 of Art. 77 of the Labor Code of the Russian Federation, Article 80 of the Labor Code of the Russian Federation, and on concluding a new employment contract with a new employer; b) transitions (transfers) involving the termination of an employment contract by agreement of the parties (clause 1 of Article 77 of the Labor Code of the Russian Federation) with the subsequent conclusion of an employment contract with another employer; c) transitions (transfers) in the order of transferring an employee to work for another employer (clause 5 of Article 77 of the Labor Code of the Russian Federation); d) transitions (transfers) in the order of temporary transfer of an athlete to another employer in the manner established by Article 348.4 of the Labor Code of the Russian Federation. The absence of reasons for identifying a sports transfer with a change of sports citizenship is substantiated.
{"title":"Classification of Transfers in Sports","authors":"V. A. Betekhtina","doi":"10.17803/1994-1471.2024.158.1.110-118","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.110-118","url":null,"abstract":"The increase in the number of conflict situations that arise when athletes and coaches are transfered to other employers is due, among other things, to the lack of a unified theoretical approach to the definition of this concept and, therefore, the delimitation of sports transfers from related phenomena. At present, a relatively small number of scientific works are devoted to the classification of sports transfer, which seems to be a significant gap in the theoretical understanding of sports transfers that needs to be filled. The paper proposes a classification of sports transfers depending on the type of jurisdiction to which the subjects of the sports transfer belong (national and international); the period of its implementation (permanent and temporary; its subjects (transfers of athletes and coaches). Some types can be distinguished between from the point of view of forms of labor regulation sports transfer: a) transitions (transfers) based on termination of the employment contract concluded with the previous employer in the manner established by paragraphs 3, 4 of Art. 77 of the Labor Code of the Russian Federation, Article 80 of the Labor Code of the Russian Federation, and on concluding a new employment contract with a new employer; b) transitions (transfers) involving the termination of an employment contract by agreement of the parties (clause 1 of Article 77 of the Labor Code of the Russian Federation) with the subsequent conclusion of an employment contract with another employer; c) transitions (transfers) in the order of transferring an employee to work for another employer (clause 5 of Article 77 of the Labor Code of the Russian Federation); d) transitions (transfers) in the order of temporary transfer of an athlete to another employer in the manner established by Article 348.4 of the Labor Code of the Russian Federation. The absence of reasons for identifying a sports transfer with a change of sports citizenship is substantiated.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"88 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140453157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-17DOI: 10.17803/1994-1471.2024.158.1.119-131
L. O. Pavlova
The author analyzes the acts of the courts of first, appellate and cassation instances and identifies shortcomings regarding the application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation. It is noted that all defects should be divided into several groups: 1) inadequate, incomplete justification for decisions to change the category of crime or to refuse it; 2) lack of motivation for such decisions; 3) ignoring the consideration of the issue of changing the category of crime; 4) violation of the procedure for changing the category of crime; 5) imposing a court fine after changing the category of the crime; 6) changing the category of crime in the presence of formal obstacles; 7) failure to take into account changes in consequences following a change in the category of crime; 8) taking into account the same circumstances when applying Part 6 of Art. 15 and Art. 64, 73 of the Criminal Code of the Russian Federation; 9) other errors (in particular, discussion of the issue of changing the category of a crime of minor gravity). The explanations of the Plenum of the Supreme Court of the Russian Federation are assessed and proposals are put forward to improve law enforcement practice.
{"title":"Defects in Judicial Practice in Changing the Category of Crime","authors":"L. O. Pavlova","doi":"10.17803/1994-1471.2024.158.1.119-131","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.119-131","url":null,"abstract":"The author analyzes the acts of the courts of first, appellate and cassation instances and identifies shortcomings regarding the application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation. It is noted that all defects should be divided into several groups: 1) inadequate, incomplete justification for decisions to change the category of crime or to refuse it; 2) lack of motivation for such decisions; 3) ignoring the consideration of the issue of changing the category of crime; 4) violation of the procedure for changing the category of crime; 5) imposing a court fine after changing the category of the crime; 6) changing the category of crime in the presence of formal obstacles; 7) failure to take into account changes in consequences following a change in the category of crime; 8) taking into account the same circumstances when applying Part 6 of Art. 15 and Art. 64, 73 of the Criminal Code of the Russian Federation; 9) other errors (in particular, discussion of the issue of changing the category of a crime of minor gravity). The explanations of the Plenum of the Supreme Court of the Russian Federation are assessed and proposals are put forward to improve law enforcement practice.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"167 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140453327","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-17DOI: 10.17803/1994-1471.2024.158.1.088-101
E. E. Lekanova
The relevance of researching the issue of the parent’s right to upbringing a child using a comparative historical and legal method can be explained by the fact that criteria still used by courts to resolve disputes about determining the place of residence of a child when parents are separated were developed in the Soviet times. The system of criteria for resolving cases concerning foster care in Soviet law enforcement practice began to be actively formed in 1928 due to participation of child custody and guardianship authorities in such cases. However, the system of such criteria was not fixed in the marital and family codes of the RSFSR. The lack of these criteria in the legislation allowed the courts to resolve disputes concerning child custody without analyzing them and without taking them into account. It was only in the post-Soviet period that an approximate system of such criteria was enshrined in the Family Code of the Russian Federation. In most cases, when resolving a dispute concerning the place of residence of a child (child custody) parents also ask to determine the schedule of communication between a separate parent and a child. In 2018, the law-enforcer made a serious evolutionary leap in determining the schedule of communication between a separate parent and a child. The Supreme Court of the Russian Federation faces a legal dilemma. On the one hand, the Court demonstrates respect for equality of parents’ rights to upbringing a child. On the other hand, it must take into account the child’s interest in the stability of the place of residence. The court resolved the dilemma in favor of the interests of the child. The paper provides proposals for improving family legislation in order to take into account the specified law enforcement experience of the Supreme Court of the Russian Federation.
{"title":"The Dispute concerning the Child’s Place of Residence in Case of Separation of Parents: History and Modernity","authors":"E. E. Lekanova","doi":"10.17803/1994-1471.2024.158.1.088-101","DOIUrl":"https://doi.org/10.17803/1994-1471.2024.158.1.088-101","url":null,"abstract":"The relevance of researching the issue of the parent’s right to upbringing a child using a comparative historical and legal method can be explained by the fact that criteria still used by courts to resolve disputes about determining the place of residence of a child when parents are separated were developed in the Soviet times. The system of criteria for resolving cases concerning foster care in Soviet law enforcement practice began to be actively formed in 1928 due to participation of child custody and guardianship authorities in such cases. However, the system of such criteria was not fixed in the marital and family codes of the RSFSR. The lack of these criteria in the legislation allowed the courts to resolve disputes concerning child custody without analyzing them and without taking them into account. It was only in the post-Soviet period that an approximate system of such criteria was enshrined in the Family Code of the Russian Federation. In most cases, when resolving a dispute concerning the place of residence of a child (child custody) parents also ask to determine the schedule of communication between a separate parent and a child. In 2018, the law-enforcer made a serious evolutionary leap in determining the schedule of communication between a separate parent and a child. The Supreme Court of the Russian Federation faces a legal dilemma. On the one hand, the Court demonstrates respect for equality of parents’ rights to upbringing a child. On the other hand, it must take into account the child’s interest in the stability of the place of residence. The court resolved the dilemma in favor of the interests of the child. The paper provides proposals for improving family legislation in order to take into account the specified law enforcement experience of the Supreme Court of the Russian Federation.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"66 18","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140453420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：