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Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice 刑事案件申诉阶段的保护权保障:理论与实践问题
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-7-16
O. Kachalova, S. A. Vdovin
Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system. The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them. Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal. Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.
介绍。被告在刑事诉讼中获得辩护的权利是有效司法的先决条件,因为它可以最大限度地减少在案件的最后决定中可能出现的错误,因为错误可能导致无辜的人被定罪,这与刑事诉讼的目的相矛盾,并破坏公民对司法制度的信心。本文的目的是找出妨碍申诉阶段有效行使辩护权的体制性问题,并提出解决这些问题的途径。主要的结果。笔者认为,保障刑事案件上诉阶段被告人辩护权的结构和逻辑要素是:被告人辩护人;辩护律师在案件上诉阶段行使被告人辩护权的义务;依照刑事诉讼法的规定,有义务保障被告人辩护权的主体;刑事诉讼法规定的一审法院和上诉法院的职责,与被告人、被告人的辩护律师和法定代理人的权利相对应,共同形成了实现被告人辩护权所必需的临时措施体系;被告人及其辩护律师、法定代理人行使宪法规定的辩护权的权力;被告人辩护权的保障。限制辩护权的唯一理由是辩护人滥用辩护权。权利被滥用的事实只能由法院认定,权利被滥用不能完全通过过程中参与者行为的外在表现来证明。是否存在滥用辩护权的问题,应由法院根据每一个别情况的全部事实情况和程序特点来决定。构成案件上诉阶段被告辩护权内容的权力体系,由两个相互关联的要素构成,一是在上诉法院提起上诉阶段及开庭前行使的权力,二是在上诉法院开庭审理刑事案件时,辩护方直接行使的权力。结论。因此,要在上诉程序阶段有效地规定辩护权,就需要立法者和执法人员改变做法。
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引用次数: 0
Declaration of independence of Armenia: an impressive guarantee of public protection 亚美尼亚独立宣言:令人印象深刻的公共保护保障
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-36-44
Arthur S. Ghambaryan
The present article analyzes the conflicting legal relationship between the Declaration of Independence of Armenia 1990 and the Constitution, international treaties and laws. The methods of research are axiomatic, comparative, analysis and synthesis, induction. The author observes that the Declaration of Independence is a legal document of perpetual (eternal), pre-constitutional and above-normative character, which provides for the principles of statehood preservation of Armenia. The Declaration of Independence is a standard for determining the ability of constitutional norms for statehood preservation and for risk diagnoses. No Constitution can be submitted to a referendum or be otherwise adopted if it contradicts the Declaration of Independence. International treaties, as well as all other normative legal acts should not contradict the basic principles of the Armenian statehood and national goals enshrined in the Declaration of Independence.
本文分析了1990年《亚美尼亚独立宣言》与亚美尼亚宪法、国际条约和法律之间的冲突法律关系。研究方法有公理法、比较法、分析综合法、归纳法。发件人指出,《独立宣言》是一份永久的、宪法之前的和高于规范的法律文件,其中规定了维护亚美尼亚国家地位的原则。《独立宣言》是确定宪法规范维护国家地位和风险诊断能力的标准。任何宪法如果与《独立宣言》相抵触,都不能提交全民公决或以其他方式通过。国际条约以及所有其他规范性法律行为不应违背亚美尼亚建国的基本原则和《独立宣言》所载的国家目标。
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引用次数: 0
Outer space law 外层空间法
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-17-35
B. Krivokapich
Given that sudden breakthroughs in conquering the cosmos are expected, some basic questions about the law governing relations in respect to outer space and in it can be expected to be triggered, starting already with the issue how one has to call that law and what is its real content. The first part of the paper deals with the naming of this branch of law and concludes that for the time being the term outer space law is the best and widely accepted. In the second part, the author states that many scientific papers and even official documents, do not define outer space law at all. There are even opinions that the outer space is a phenomenon which cannot be defined at all, suggesting that it is not possible to define a cosmic right either. The author considers that a distinction should be made between national space law of states and international space law (space law in the narrow sense a branch of international law containing legal rules governing relations in respect to the space and in the space, and in particular the regime of that space and celestial bodies it contains, exploration and exploitation of the space, the regime of navigation in the space, the legal position of the astronauts and space objects, international legal liability for damage caused by space activities, etc.). When so is clearly stated, one can also speak of space law in a broad sense, which, in addition to the norms of space law in the narrow sense, would include norms that are part of soft law, agreements and legal customs between states and non-state entities, and even at some point so-called. metalaw (law that may one day govern relations between humanity and creatures of other worlds).
考虑到征服宇宙的突然突破是可以预期的,关于支配外层空间及其内部关系的法律的一些基本问题可能会被触发,首先是如何称呼这一法律以及它的真正内容是什么。本文的第一部分讨论了这一法律分支的命名,并得出结论,目前“外层空间法”一词是最好的和被广泛接受的。在第二部分中,作者指出,许多科学论文甚至官方文件根本没有定义外层空间法。甚至有观点认为,外层空间是一种根本无法定义的现象,这表明也不可能定义一种宇宙权利。发件人认为,应区分各国的国家空间法和国际空间法(狭义的空间法是国际法的一个分支,其中载有关于空间和空间内关系的法律规则,特别是空间及其所载天体的制度、空间的探索和利用、空间航行制度、宇航员和空间物体的法律地位)。空间活动等造成损害的国际法律责任)。在明确说明这一点的情况下,人们也可以谈论广义的空间法,除了狭义的空间法规范外,还包括作为软法、国家与非国家实体之间的协定和法律惯例一部分的规范,甚至在某种程度上也包括所谓的规范。元法(可能有一天支配人类和其他世界生物之间关系的法律)。
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引用次数: 0
«Digital» property crimes: issues of criminalization and legislative regulation “数字”财产犯罪:定罪和立法监管问题
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-73-90
Garik R. Grigoryan
This article shows that an important role in the legal protection of the digital economy is played by modern criminal law, which is designed to form a system of legal mechanisms to ensure the protection of society from digital property crimes. The new mechanism of criminal legal protection should ensure effective counteraction to both real and potential criminal threats in the emerging digital reality. It is proved that in the context of digitalization, there is a need for a radical reform of Chapter 21 of the Criminal Code of the Russian Federation. Alternative directions for improving the criminal law provisions on liability for crimes against property are proposed. One of the author's options is to build new separate structures of property crimes property abuses and other violations in the field of information and telecommunications networks, including the Internet. Another is the allocation of an independent group of property crimes in the field of the digital economy within the framework of Chapter 21 of the Criminal Code of the Russian Federation, and accordingly the division of the chapter into two groups: property crimes against property (theft of other people's property, illegal possession of a vehicle, destruction and damage to other people's property) and crimes against property in the field of information and telecommunications networks.
本文认为,现代刑法在数字经济的法律保护中发挥着重要作用,旨在形成一套保障社会免受数字财产犯罪侵害的法律机制体系。新的刑事法律保护机制应确保在新兴的数字现实中有效应对现实和潜在的犯罪威胁。事实证明,在数字化背景下,有必要对俄罗斯联邦刑法第21章进行彻底改革。提出了完善刑法中侵害财产罪责任规定的备选方向。提交人的选择之一是在包括互联网在内的信息和电信网络领域建立新的财产犯罪、财产滥用和其他侵权行为的单独结构。另一个是在俄罗斯联邦刑法第21章的框架内,在数字经济领域分配一个独立的财产犯罪组,并相应地将该章分为两个组:财产财产犯罪(盗窃他人财产,非法占有车辆,破坏和损害他人财产)和信息和电信网络领域的财产犯罪。
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引用次数: 1
Medical error when providing medical care as a basis for applying to the court for judicial protection 提供医疗时的医疗失误,作为向法院申请司法保护的依据
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-45-57
N. Tkacheva
Issues of the quality of medical care in the Russian Federation are actively discussed by both scientists and practitioners, in addition, this issue is of particular interest to the direct recipients of this assistance, i.e. citizens. In this paper, in order to comprehensively study the effective protection of violated rights of patients, we study the nature of medical errors, as well as the attitude of patients and doctors to them. In this work, formal legal methods were used. The article examines in detail the algorithm of actions before applying to the court of an interested person whose right is violated by poor-quality medical care, in the context of their impact on the final result of judicial protection, which is carried out by making a legitimate and reasoned decision on the case. The author analyzes the actions, the Commission of which is necessary in cases when suffered injury improper provision of medical services is a medical facility or by a doctor carrying out private practice from the moment of establishment of the fact of committing a medical error by examination and ending with the preparation and filing of a claim in the court in accordance with article 131 and 132 of the code of civil procedure of the Russian Federation. The article examines the subject composition of persons in cases on the protection of patients ' rights, issues of jurisdiction, requirements for the form and content of the statement of claim. The work is illustrated by examples from judicial practice, indicating the variety of cases of violation of patients ' rights, the difficulties that may arise in the process of proving the plaintiff's position in the case, as well as the exclusivity of individual means of proof in this category of cases, such as the expert opinion.
俄罗斯联邦的科学家和从业人员都积极讨论医疗保健质量问题,此外,这一问题对这种援助的直接接受者,即公民特别感兴趣。在本文中,为了全面研究被侵犯的患者权利的有效保护,我们研究了医疗事故的性质,以及患者和医生对医疗事故的态度。在这项工作中,使用了正式的法律方法。本文详细审查了因劣质医疗服务而权利受到侵犯的利害关系人在向法院提出申请之前的行动算法,并从其对司法保护的最终结果的影响的角度出发,对案件作出合法和合理的决定。提交人分析了这些行动,如果受伤是在医疗设施或由私人执业的医生不当提供医疗服务的情况下,从通过检查确定造成医疗错误的事实之时起,直至根据《俄罗斯联邦民事诉讼法》第131条和第132条准备并向法院提出索赔为止,委员会是必要的。本文探讨了患者权利保护案件中当事人的主体构成、管辖权问题、请求书的形式和内容要求。本书以司法实践为例,说明侵犯患者权利的案件种类繁多,在证明原告在案件中的立场的过程中可能出现的困难,以及在这类案件中个人证明手段的排他性,例如专家意见。
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引用次数: 0
Debt transfer agreement by the creditor: legal forms, procedure, meaning 债权人债务转让协议:法律形式、程序、含义
Pub Date : 2021-07-12 DOI: 10.18287/1810-4088-2020-15-2-58-72
I. Povarov
The work catalogs and studies in detail (including in a comparative legal section) various legal forms of the creditor's approval of the transfer of debt by virtue of the transaction and on the grounds provided for by law. The main attention, first of all, is paid to debatable issues regarding the ratio of centralized and individual regulation of the relevant relations, the variety of ways to agree on the transfer of debt (models consent is a unilateral transaction, consent as a condition of the contract, etc.), the nature of the impact of (not) giving permission by the creditor on the fate of an agreement on the transfer of debt obligations concluded without his participation, comparison of the modes of preliminary and subsequent approval. The methodological basis of the research was formed by general theoretical (formal and dialectical logic) and special scientific (legal-dogmatic, interpretation of legal norms, legal modeling, comparative legal) methods. As a result, the author substantiates the feasibility of adjusting the legal provisions in the direction of a clear pairing of general instructions on consent to a transaction and special rules on consent to the transfer of debt, as well as in order to eliminate uncertainty about the actual moments of obtaining an approving creditor's will (subject of agreement, the essence of the nullity of the transfer of debt, admissibility the use of constructions of impersonal previously given and subsequent consent, etc.).
这项工作详细地(包括在比较法部分)列出和研究债权人根据交易和法律规定的理由批准债务转让的各种法律形式。首先,主要关注的是有关相关关系的集中和个别调节的比例、债务转让协议的各种方式(同意是单方面交易的模式、同意作为合同的条件等)、债权人(不)给予许可对未经其参与而订立的债务转让协议的命运的影响的性质。前期和后续审批模式的比较。研究的方法论基础是由一般的理论(形式逻辑和辩证逻辑)和特殊的科学(法律教条主义、法律规范解释、法律建模、比较法)方法构成的。因此,作者证明了调整法律规定的可行性,即明确结合关于同意交易的一般指示和关于同意债务转让的特别规则,并消除获得批准债权人遗嘱的实际时刻的不确定性(以协议为主体,债务转让无效的本质)。可采性(使用非人格化的先前给予和随后同意等结构)。
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引用次数: 0
PROTOPARTY ASSOCIATIONS OF DECEMBRIST MOVEMENT AS ANCESTORS OF INTRAPARTY REGULATION OF MODERN TYPE (HISTORICAL AND LEGAL ANALYSIS) 十二月党人运动的原始政党协会是现代党内规则的先驱(历史和法律分析)
Pub Date : 2021-04-10 DOI: 10.18287/1810-4088-2020-15-1-73-78
V. Mamedova
The article examines the origin of intraparty (corporate) regulation in Russia. It contains analysis of Decembrist regulatory documents aimed to find out the beginning of modern institutes of intraparty regulation. The following conclusion is drawn: there are centuriesold Russian traditions in the area of regulation of intrаparty relations.
本文考察了俄罗斯党内(公司)规制的起源。对十二月党人的规章文件进行了分析,旨在找出现代党内规章制度的起源。得出以下结论:俄罗斯在调节党内关系方面有着悠久的传统。
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引用次数: 0
HUMAN RIGHT FOR SOCIAL SECURITY IN INTERNATIONAL ACTS, LAWS OF FOREIGN COUNTRIES AND RUSSIA 国际法律、外国法律和俄罗斯的社会保障人权
Pub Date : 2020-04-10 DOI: 10.18287/1810-4088-2020-15-1-63-64
N. A. Kichemasova
The article presents comparative analysis of state of Social Security in some foreign countries and in the Russian Federation, main problems of Russian Social Security Law reforming, also the article contains propositions for enhancement of Russian Social Security to international standards.
文章对国外社会保障现状和俄罗斯联邦社会保障现状进行了比较分析,提出了俄罗斯社会保障法律改革中存在的主要问题,并提出了提高俄罗斯社会保障与国际接轨的建议。
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引用次数: 0
CONCEPT AND PRINCIPLES OF SOCIAL SECURITY LAW IN RUSSIA 俄罗斯社会保障法的概念和原则
Pub Date : 2020-04-10 DOI: 10.18287/1810-4088-2020-15-1-65-66
I. A. Khokhlov
This article addresses the question of whether principles of social security law to be enshrined in the law, the code or other legal act.
本文论述了社会保障法原则是否应载入法律、法典或其他法律行为的问题。
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引用次数: 0
FREEDOM OF LABOR AND ITS LEGAL MEDIATING IN HISTORICAL AND LEGAL RETROSPECTIVE 劳动自由及其法律调解的历史与法律回顾
Pub Date : 2020-04-10 DOI: 10.18287/1810-4088-2020-15-1-59-62
D. E. Shabanova
The article is devoted to comparative legal retrospective analysis of labor relations. The estimation of the extent to which the right to labor the actual position of the workers in the study period, as well as the reasons behind it is the consolidation of these rights is giveu.
本文致力于劳动关系的比较法律追溯分析。并对研究期间劳动者劳动权利的实际地位、劳动权利巩固的程度以及背后的原因进行了估计。
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引用次数: 0
期刊
Juridical Analytical Journal
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