Pub Date : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-374-383
P. P. Serkov, Yury P. Solovey
This material opens a series of scientific publications planned by the editors of the Siberian Law Review journal, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for Russian administrative legal theory and law practice, in the “question-answer” format. The scientific, theoretical and practical significance of the noted problem is predetermined by the fact that the exercise of discretionary powers by the public administration (as opposed to powers strictly bound by law) is fraught with the greatest threat to the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations. The purpose of the study is to clarify issues related to the concept and essence of administrative discretion, its regulatory legal framework, forms of implementation, ways to establish the limits of discretion of public administration, criteria for assessing the legality of discretionary administrative acts, judicial and agency control over administrative discretion. The subject of the research is normative legal acts, legal principles, administrative and judicial acts, scientific works of Russian and foreign legal scholars. The hypothesis of the study is that, despite the abundance of scientific publications on administrative-discretionary topics, the domestic doctrine of administrative discretion is a motley mixture of judgments that do not agree with each other, often divorced from the needs of administrative and judicial practice, characterized by the absence of a single categorical apparatus. According to Yuri P. Solovey, an important, if not the most important section of administrative discretionary issues, are the limits of judicial control over administrative discretion, which has practically fallen out of the field of view of Russian scholars, despite the fact that it has been thoroughly studied abroad for more than a century and a half. From the point of view of Petr P. Serkov, the domestic science of administrative law has not yet properly answered three fundamental questions, namely: what is administrative discretion, what is it intended for and how is it carried out. The Authors of the publication are unanimous that such a “doctrine” of administrative discretion does not contribute to the development of legislative solutions to bring such discretion to the standards of a legal, democratic state. In the process of research, dialectical, formal-logical, formal-legal, comparative-legal methods of cognition, the method of interpreting law, analysis of materials from administrative and judicial practice are used. The Authors attempt to streamline the categorical apparatus of the theory of administrative discretion, as well as to formulate its main provisions and some proposals for improving the current legislation.
{"title":"Administrative Discretion: Questions and Answers (Part 1)","authors":"P. P. Serkov, Yury P. Solovey","doi":"10.19073/2658-7602-2022-19-4-374-383","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-374-383","url":null,"abstract":"This material opens a series of scientific publications planned by the editors of the Siberian Law Review journal, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for Russian administrative legal theory and law practice, in the “question-answer” format. The scientific, theoretical and practical significance of the noted problem is predetermined by the fact that the exercise of discretionary powers by the public administration (as opposed to powers strictly bound by law) is fraught with the greatest threat to the rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations. The purpose of the study is to clarify issues related to the concept and essence of administrative discretion, its regulatory legal framework, forms of implementation, ways to establish the limits of discretion of public administration, criteria for assessing the legality of discretionary administrative acts, judicial and agency control over administrative discretion. The subject of the research is normative legal acts, legal principles, administrative and judicial acts, scientific works of Russian and foreign legal scholars. The hypothesis of the study is that, despite the abundance of scientific publications on administrative-discretionary topics, the domestic doctrine of administrative discretion is a motley mixture of judgments that do not agree with each other, often divorced from the needs of administrative and judicial practice, characterized by the absence of a single categorical apparatus. According to Yuri P. Solovey, an important, if not the most important section of administrative discretionary issues, are the limits of judicial control over administrative discretion, which has practically fallen out of the field of view of Russian scholars, despite the fact that it has been thoroughly studied abroad for more than a century and a half. From the point of view of Petr P. Serkov, the domestic science of administrative law has not yet properly answered three fundamental questions, namely: what is administrative discretion, what is it intended for and how is it carried out. The Authors of the publication are unanimous that such a “doctrine” of administrative discretion does not contribute to the development of legislative solutions to bring such discretion to the standards of a legal, democratic state. In the process of research, dialectical, formal-logical, formal-legal, comparative-legal methods of cognition, the method of interpreting law, analysis of materials from administrative and judicial practice are used. The Authors attempt to streamline the categorical apparatus of the theory of administrative discretion, as well as to formulate its main provisions and some proposals for improving the current legislation.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45855486","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 : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-343-355
P. N. Potapov
The problem of determining the competence of the court to consider a complaint (application) when applying for judicial protection of a person held liable in an administrative offense case, both by the person himself and by the judges, is considered. The study of existing rules of law, judicial acts of courts of first and higher instances, including the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation, the analysis of scientific works devoted to the problem of determining the competent court both in cases of administrative offenses and in civil proceedings is a method, which allows one to study the problem of possible restriction or exclusion of access to judicial protection of persons held administratively liable, when appealing against the relevant regulatory act recognizing them as such. The Author compares the legislation on judicial proceeding in cases of administrative offenses of the Russian Federation and the Republic of Belarus. Investigates the procedure for appealing against a decision in a case on an administrative offense and a decision within the framework of the Code of the Russian Federation on Administrative Offenses and the Arbitration Procedure Code of the Russian Federation, their similarities and differences in the regulation of the appeal procedure. Court practice is brought to attention, which clearly demonstrates the essence of the problem of determining the competent court when applying for judicial protection in a case of an administrative offense. Judicial practice demonstrates a variety of approaches to the existing problem not only by the same court, but also by the same judge. The rights of persons brought to administrative responsibility, violated due to the existence of this problem, are identified. Through the study of scientific works of civil procedure scholars, the Author discusses the possibility of changing existing legislation in order to eliminate the possibility of depriving a person brought to administrative responsibility of the right to judicial protection. The Author proposes to exclude a number of norms from the current legislation, while the norms governing the issue of competence should be changed in terms of the procedure for handling an application received by the court, a complaint in a case of an administrative offense. The importance of resolving this problem for the Russian Federation as a legal state, which is the Russian Federation, is explained.
{"title":"The Determination of the Competent Court When Applying for Judicial Protection in an Administrative Offense Case","authors":"P. N. Potapov","doi":"10.19073/2658-7602-2022-19-4-343-355","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-343-355","url":null,"abstract":"The problem of determining the competence of the court to consider a complaint (application) when applying for judicial protection of a person held liable in an administrative offense case, both by the person himself and by the judges, is considered. The study of existing rules of law, judicial acts of courts of first and higher instances, including the Supreme Court of the Russian Federation, the Constitutional Court of the Russian Federation, the analysis of scientific works devoted to the problem of determining the competent court both in cases of administrative offenses and in civil proceedings is a method, which allows one to study the problem of possible restriction or exclusion of access to judicial protection of persons held administratively liable, when appealing against the relevant regulatory act recognizing them as such. The Author compares the legislation on judicial proceeding in cases of administrative offenses of the Russian Federation and the Republic of Belarus. Investigates the procedure for appealing against a decision in a case on an administrative offense and a decision within the framework of the Code of the Russian Federation on Administrative Offenses and the Arbitration Procedure Code of the Russian Federation, their similarities and differences in the regulation of the appeal procedure. Court practice is brought to attention, which clearly demonstrates the essence of the problem of determining the competent court when applying for judicial protection in a case of an administrative offense. Judicial practice demonstrates a variety of approaches to the existing problem not only by the same court, but also by the same judge. The rights of persons brought to administrative responsibility, violated due to the existence of this problem, are identified. Through the study of scientific works of civil procedure scholars, the Author discusses the possibility of changing existing legislation in order to eliminate the possibility of depriving a person brought to administrative responsibility of the right to judicial protection. The Author proposes to exclude a number of norms from the current legislation, while the norms governing the issue of competence should be changed in terms of the procedure for handling an application received by the court, a complaint in a case of an administrative offense. The importance of resolving this problem for the Russian Federation as a legal state, which is the Russian Federation, is explained.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44770956","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 : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-399-406
N. R. Koreshnikova
Based on a comprehensive analysis of the Constitution of the Russian Federation, the current criminal procedure legislation of the Russian Federation, the Federal Law “On the Prosecutor's Office of the Russian Federation” and the theoretical developments of specialists in the field of constitutional law, criminal procedure and prosecutorial supervision, and also taking into account the amendments to Article 129 of the Constitution of the Russian Federation, it can be argued that the institution of the prosecutor's participation in the criminal process has reached a new level of legal significance. The Author made an attempt to reveal the content and features of the human rights activities of the prosecutor in the criminal process from the point of view of the concept of separation of powers, to determine the place and role of the prosecutor in the system of relations between the bodies engaged in criminal procedure. According to the Author, the content of the powers of the prosecutor in the criminal process is a clear example of the reflection of the principle of subsidiarity of the branches of power. Implementing criminal prosecution in the criminal process, the prosecutor simultaneously performs a human rights function, since the legislator gives him the authority to identify and respond to violations of human and civil rights and freedoms while supervising the implementation of laws by the bodies of preliminary investigation, inquiry and operational-search activities at the pretrial stages, as well as when participating in court when considering criminal cases. The prosecutor, having the status of an independent body that is not part of the triune system of state power, acts as a guarantor of the implementation of the principle of proportional activity of all branches of state power. Thus, we can say that the implementation of the human rights activities of the prosecutor when considering criminal cases by the courts is a priority. The methodological basis of the study was made up of general scientific and particular scientific methods: analysis, synthesis, comparison, generalization, correlation, expert assessments.
{"title":"The Functions of the Prosecutor in the Criminal Process in the Context of the Constitutional Principle of Separation of Powers","authors":"N. R. Koreshnikova","doi":"10.19073/2658-7602-2022-19-4-399-406","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-399-406","url":null,"abstract":"Based on a comprehensive analysis of the Constitution of the Russian Federation, the current criminal procedure legislation of the Russian Federation, the Federal Law “On the Prosecutor's Office of the Russian Federation” and the theoretical developments of specialists in the field of constitutional law, criminal procedure and prosecutorial supervision, and also taking into account the amendments to Article 129 of the Constitution of the Russian Federation, it can be argued that the institution of the prosecutor's participation in the criminal process has reached a new level of legal significance. The Author made an attempt to reveal the content and features of the human rights activities of the prosecutor in the criminal process from the point of view of the concept of separation of powers, to determine the place and role of the prosecutor in the system of relations between the bodies engaged in criminal procedure. According to the Author, the content of the powers of the prosecutor in the criminal process is a clear example of the reflection of the principle of subsidiarity of the branches of power. Implementing criminal prosecution in the criminal process, the prosecutor simultaneously performs a human rights function, since the legislator gives him the authority to identify and respond to violations of human and civil rights and freedoms while supervising the implementation of laws by the bodies of preliminary investigation, inquiry and operational-search activities at the pretrial stages, as well as when participating in court when considering criminal cases. The prosecutor, having the status of an independent body that is not part of the triune system of state power, acts as a guarantor of the implementation of the principle of proportional activity of all branches of state power. Thus, we can say that the implementation of the human rights activities of the prosecutor when considering criminal cases by the courts is a priority. The methodological basis of the study was made up of general scientific and particular scientific methods: analysis, synthesis, comparison, generalization, correlation, expert assessments.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42148285","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 : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-356-373
A. Ravnyushkin
Relevance and subject of research. The circulation of firearms as a source of increased danger is subject to legal regulation and control in the Russian Federation. The use of weapons by police officers is no exception. The norms of the Federal Law of February 7, 2011 No. 3-FZ “About the Police” (hereinafter referred to as the Law “About the Police”) refer to the achievements of domestic administrative science as a result of the work of specialists. In systemic connection with the norms of criminal law, they regulate the conditions and limits for the use of coercive measures by police officers, including firearms. The fundamental ideas of the activities of the Russian police have successfully cooperated with the norms of international law. On the contrary, in the socalled “leading” democratic state – the United States of America, such cooperation does not look well-coordinated, which the Author substantiates when studying the origins of the right of citizens of this state to own firearms, the regulatory regulation of the circulation of weapons in the United States, the negative consequences of this regulation (based on research by American scientists and statistical data), the activities of the US police to counter armed attacks and its legal regulation. One of the US attempts to comply with international law in this area is analyzed, namely the adopted new policy of the US Customs and Border Protection on the use of force, including firearms.The purpose of the study is to determine the state of legal regulation of the circulation of civilian firearms in the United States, the use of these weapons as a coercive measure by police officers in order to identify its positive aspects, in the presence of which the decision on the possibility / impossibility of their introduction into Russian legislation. This led to the setting of the following tasks: to study the constitutional foundations of the right to own firearms by US citizens (historical aspect); to determine the current state of legal regulation of civilian circulation of firearms in the United States and its consequences; analyze the activities of the US police to counter armed attacks and its legal regulation, evaluate them and determine the prospects for their improvement; identify the provisions of American legislation that are of scientific interest, and the possibility / impossibility of their implementation in Russian legislation.The methodological basis of the study was a dialectical approach to the scientific knowledge of social relations associated with the circulation of firearms, the implementation of their state regulation, analysis and synthesis of the results obtained during the study, which made it possible to formulate and substantiate the conclusions. Among the special methods used in the study are the method of studying normative legal acts and documents, the empirical method, the method of processing and analyzing data, and their generalization. Findings. The study shows th
{"title":"The Legal Issues of Firearms Trafficking in the United States of America","authors":"A. Ravnyushkin","doi":"10.19073/2658-7602-2022-19-4-356-373","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-356-373","url":null,"abstract":"Relevance and subject of research. The circulation of firearms as a source of increased danger is subject to legal regulation and control in the Russian Federation. The use of weapons by police officers is no exception. The norms of the Federal Law of February 7, 2011 No. 3-FZ “About the Police” (hereinafter referred to as the Law “About the Police”) refer to the achievements of domestic administrative science as a result of the work of specialists. In systemic connection with the norms of criminal law, they regulate the conditions and limits for the use of coercive measures by police officers, including firearms. The fundamental ideas of the activities of the Russian police have successfully cooperated with the norms of international law. On the contrary, in the socalled “leading” democratic state – the United States of America, such cooperation does not look well-coordinated, which the Author substantiates when studying the origins of the right of citizens of this state to own firearms, the regulatory regulation of the circulation of weapons in the United States, the negative consequences of this regulation (based on research by American scientists and statistical data), the activities of the US police to counter armed attacks and its legal regulation. One of the US attempts to comply with international law in this area is analyzed, namely the adopted new policy of the US Customs and Border Protection on the use of force, including firearms.The purpose of the study is to determine the state of legal regulation of the circulation of civilian firearms in the United States, the use of these weapons as a coercive measure by police officers in order to identify its positive aspects, in the presence of which the decision on the possibility / impossibility of their introduction into Russian legislation. This led to the setting of the following tasks: to study the constitutional foundations of the right to own firearms by US citizens (historical aspect); to determine the current state of legal regulation of civilian circulation of firearms in the United States and its consequences; analyze the activities of the US police to counter armed attacks and its legal regulation, evaluate them and determine the prospects for their improvement; identify the provisions of American legislation that are of scientific interest, and the possibility / impossibility of their implementation in Russian legislation.The methodological basis of the study was a dialectical approach to the scientific knowledge of social relations associated with the circulation of firearms, the implementation of their state regulation, analysis and synthesis of the results obtained during the study, which made it possible to formulate and substantiate the conclusions. Among the special methods used in the study are the method of studying normative legal acts and documents, the empirical method, the method of processing and analyzing data, and their generalization. Findings. The study shows th","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46175045","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 : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-419-427
D. T. Karamanukyan
On October 11, 2010, France became the first European country to ban the full-face Islamic veil – the burqa and niqab, in public places. After France becoming a “pioneer” in this area, by contrast to the United Stated and Russia, facial veil prohibition acts have been adopted in several other European countries and discussed in even more. These acts and political debates have generated a colossal number of research papers – mostly on legal issues by lawyer-scholars, critical analyses and, I’m sure, will produce many more. They have mainly focused on different aspects of the right to religious and cultural freedom, the right to gender equality. However, the novelty of Professor Raphael Cohen-Almagor’s monograph “The Republic, Secularism and Security: France versus the Burqa and the Niqab” lies in a non-standard approach to the veil-ban issue – he investigates using different methodological instruments not only the legal core the ban, but also (and mostly) the factors motivating the French legislator, what it symbolizes. Since the niqab and burqa wearers are extremely rare in France, as in almost all European Countries, one may agree that there surely isn’t an actual social problem, needing to be regulated by the government. Such disproportional This difference between practical importance and French legislative effort have urged Professor Cohen-Almagor to dwell on the reasons of such a high interest by the public administration to the religious facial veil. The study was carried out using various scientific methods: general scientific (analysis, synthesis, modeling, abstraction, etc.), empirical (observation, statistics), specifically legal (comparative legal, axiological, sociological, hermeneutics), historical (diachronic, ideographic). Huge practical experience, thorough, systemic knowledge of the regulatory material and practical aspects of its implementation allow the Author to analyze the symbolic and instrumental role of the facial veil in France’s pursuit for national identity building.
{"title":"Review of the Monograph: Cohen-Almagor R. The Republic, Secularism and Security: France versus the Burqa and the Niqab. Cham: Springer, 2022. 66 p.","authors":"D. T. Karamanukyan","doi":"10.19073/2658-7602-2022-19-4-419-427","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-419-427","url":null,"abstract":"On October 11, 2010, France became the first European country to ban the full-face Islamic veil – the burqa and niqab, in public places. After France becoming a “pioneer” in this area, by contrast to the United Stated and Russia, facial veil prohibition acts have been adopted in several other European countries and discussed in even more. These acts and political debates have generated a colossal number of research papers – mostly on legal issues by lawyer-scholars, critical analyses and, I’m sure, will produce many more. They have mainly focused on different aspects of the right to religious and cultural freedom, the right to gender equality. However, the novelty of Professor Raphael Cohen-Almagor’s monograph “The Republic, Secularism and Security: France versus the Burqa and the Niqab” lies in a non-standard approach to the veil-ban issue – he investigates using different methodological instruments not only the legal core the ban, but also (and mostly) the factors motivating the French legislator, what it symbolizes. Since the niqab and burqa wearers are extremely rare in France, as in almost all European Countries, one may agree that there surely isn’t an actual social problem, needing to be regulated by the government. Such disproportional This difference between practical importance and French legislative effort have urged Professor Cohen-Almagor to dwell on the reasons of such a high interest by the public administration to the religious facial veil. The study was carried out using various scientific methods: general scientific (analysis, synthesis, modeling, abstraction, etc.), empirical (observation, statistics), specifically legal (comparative legal, axiological, sociological, hermeneutics), historical (diachronic, ideographic). Huge practical experience, thorough, systemic knowledge of the regulatory material and practical aspects of its implementation allow the Author to analyze the symbolic and instrumental role of the facial veil in France’s pursuit for national identity building.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42809038","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 : 2023-01-08DOI: 10.19073/2658-7602-2022-19-4-407-418
Yuliya S. Pestereva, O. I. Rozhkova, A. N. Shaglanova
Bankruptcy is a legally justified mechanism of a market economy and must comply with modern social realities. Despite the fact that the legal field in this area is well developed, the existing problems in implementing the provisions of the insolvency institution make it vulnerable and subject it to criminalization. The article describes the main problems that the law enforcer could find and ways to solve them in the Russian Federation. The Authors propose to define the presence of signs of bankruptcy as identical to the situation in which the crimes committed under Part 1 and Part 2 of Art. 195 of the Criminal Code of the Russian Federation – “if there are signs of bankruptcy”, that is, apply a literal interpretation, guided by the provisions of Art. 3 of the Bankruptcy Law. The legislator has created conditions restricting the application of Part 3 of Art. 195 of the Criminal Code of the Russian Federation, since it established that criminal liability can only arise in cases where the functions of the head of an organization are either assigned to an arbitration manager or to the head of the provisional administration of a credit organization. To resolve this problem, we believe that the legislator needs to state Part 3 of Art. 195 of the Criminal Code of the Russian Federation as amended, which takes into account the possibility for the law enforcer to involve the guilty person at all stages of the bankruptcy procedure. When assessing major damage, arbitration prejudice should be taken into account in the first place, in order to increase the preventive potential of this article, the Authors propose an exception to the category of “major damage” with the corresponding loss of force, Parts 1,2,4 of Art. 14.12 Code of Administrative Offences of the Russian Federation. Particular attention is paid to the issues of determining the subject composition of Art. 195 of the Criminal Code of the Russian Federation. Interpretation of Part 2 of Art. 195 of the Criminal Code of the Russian Federation allows us to conclude that the subject of this crime can also be a creditor who exhibits dishonest behavior, whose property claims are illegally satisfied to the detriment of other creditors. The article also deals with the legal technique of the offense under of Art. 195 of the Criminal Code of the Russian Federation, and a number of novel recommendations are proposed for improving this norm and the norms that bind the institution of bankruptcy, as well as for their application.
{"title":"Criminal Liability for Unlawful Actions in Bankruptcy: the Current State, Problems and Methods of Resolution","authors":"Yuliya S. Pestereva, O. I. Rozhkova, A. N. Shaglanova","doi":"10.19073/2658-7602-2022-19-4-407-418","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-407-418","url":null,"abstract":"Bankruptcy is a legally justified mechanism of a market economy and must comply with modern social realities. Despite the fact that the legal field in this area is well developed, the existing problems in implementing the provisions of the insolvency institution make it vulnerable and subject it to criminalization. The article describes the main problems that the law enforcer could find and ways to solve them in the Russian Federation. The Authors propose to define the presence of signs of bankruptcy as identical to the situation in which the crimes committed under Part 1 and Part 2 of Art. 195 of the Criminal Code of the Russian Federation – “if there are signs of bankruptcy”, that is, apply a literal interpretation, guided by the provisions of Art. 3 of the Bankruptcy Law. The legislator has created conditions restricting the application of Part 3 of Art. 195 of the Criminal Code of the Russian Federation, since it established that criminal liability can only arise in cases where the functions of the head of an organization are either assigned to an arbitration manager or to the head of the provisional administration of a credit organization. To resolve this problem, we believe that the legislator needs to state Part 3 of Art. 195 of the Criminal Code of the Russian Federation as amended, which takes into account the possibility for the law enforcer to involve the guilty person at all stages of the bankruptcy procedure. When assessing major damage, arbitration prejudice should be taken into account in the first place, in order to increase the preventive potential of this article, the Authors propose an exception to the category of “major damage” with the corresponding loss of force, Parts 1,2,4 of Art. 14.12 Code of Administrative Offences of the Russian Federation. Particular attention is paid to the issues of determining the subject composition of Art. 195 of the Criminal Code of the Russian Federation. Interpretation of Part 2 of Art. 195 of the Criminal Code of the Russian Federation allows us to conclude that the subject of this crime can also be a creditor who exhibits dishonest behavior, whose property claims are illegally satisfied to the detriment of other creditors. The article also deals with the legal technique of the offense under of Art. 195 of the Criminal Code of the Russian Federation, and a number of novel recommendations are proposed for improving this norm and the norms that bind the institution of bankruptcy, as well as for their application.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45262712","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 : 2022-12-01DOI: 10.19073/2658-7602-2022-19-4-332-342
A. Kulakov
The process of formation and development of legal consciousness is one of the main elements of the development of public consciousness in general, it helps to reach new levels of collective evolution. The development of public consciousness went through many stages, it can be defined as follows: from mythological, and then traditional consciousness to logical and legal consciousness. The category of legal consciousness, widely used in legal discourse, acts primarily as a characteristic of the sociolegal way of being a person. Legal consciousness, considered as a process, implicitly contains an initially defined meaning of law, encoded in the goal-setting and ideological position of the subject as a legal creature. In modern domestic jurisprudence, issues related to the understanding of legal consciousness, its essence and structure, have been developed to a certain extent. However, this does not mean that there is no space for their further study, taking into account the new methodology and changing social realities. In their works, various authors express positions that legal consciousness should be considered as a complex, in relations of interaction with law: one depends on the other equally. At the same time, it should be noted that legal consciousness is also influenced by non-legal factors that have a huge impact on the formation of legal consciousness, namely: ideological, cultural, religious, historical, material and economic, historical factors. Combining, all of the above factors form the levels of development of ordinary legal consciousness, both personal and public. The choice of legal means and, as a result, the effectiveness of the types of legal activities of the individual and society as a whole depends on the level of development of ordinary legal consciousness. In this article, the Author analyzes one of the levels of legal consciousness, namely ordinary legal consciousness. Special attention is paid by the Author to the views of legal scholars regarding the “concept” and “essence” of ordinary legal consciousness. The construction of legal consciousness, its specificity, characteristic features, as well as factors influencing its development and formation are considered. In his work, the Author reveals the features of ordinary legal consciousness, and also comes to the conclusion that ordinary legal consciousness is a phenomenon based on the subjective reflection of an objectively existing and developing reality by an individual.
{"title":"The Concept, Essence and Digital Reality of Ordinary Legal Consciousness","authors":"A. Kulakov","doi":"10.19073/2658-7602-2022-19-4-332-342","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-332-342","url":null,"abstract":"The process of formation and development of legal consciousness is one of the main elements of the development of public consciousness in general, it helps to reach new levels of collective evolution. The development of public consciousness went through many stages, it can be defined as follows: from mythological, and then traditional consciousness to logical and legal consciousness. The category of legal consciousness, widely used in legal discourse, acts primarily as a characteristic of the sociolegal way of being a person. Legal consciousness, considered as a process, implicitly contains an initially defined meaning of law, encoded in the goal-setting and ideological position of the subject as a legal creature. In modern domestic jurisprudence, issues related to the understanding of legal consciousness, its essence and structure, have been developed to a certain extent. However, this does not mean that there is no space for their further study, taking into account the new methodology and changing social realities. In their works, various authors express positions that legal consciousness should be considered as a complex, in relations of interaction with law: one depends on the other equally. At the same time, it should be noted that legal consciousness is also influenced by non-legal factors that have a huge impact on the formation of legal consciousness, namely: ideological, cultural, religious, historical, material and economic, historical factors. Combining, all of the above factors form the levels of development of ordinary legal consciousness, both personal and public. The choice of legal means and, as a result, the effectiveness of the types of legal activities of the individual and society as a whole depends on the level of development of ordinary legal consciousness. In this article, the Author analyzes one of the levels of legal consciousness, namely ordinary legal consciousness. Special attention is paid by the Author to the views of legal scholars regarding the “concept” and “essence” of ordinary legal consciousness. The construction of legal consciousness, its specificity, characteristic features, as well as factors influencing its development and formation are considered. In his work, the Author reveals the features of ordinary legal consciousness, and also comes to the conclusion that ordinary legal consciousness is a phenomenon based on the subjective reflection of an objectively existing and developing reality by an individual.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48113289","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 : 2022-11-15DOI: 10.19073/2658-7602-2022-19-4-384-398
E. V. Elagina
The article deals with local issues of assessing an expert’s opinion: the legality of the subject of initiating a forensic examination and the direct subject of its production. The scope of the Author’s interests, teaching experience and scientific activity make it possible to classify these issues as “latent”, since their non-obviousness is determined both by the established law judicial practice and by the imperfection of the legal regulation of forensic examination in criminal proceedings. Along with the main issues, attention is paid to the genesis of the institution of forensic examination in criminal proceedings, which aims to demonstrate the continuity of its legal regulation, and also to draw attention to the fact that some approaches used by the legislator in the Code of Criminal Procedure of the RSFSR could be preserved in the current criminal procedure law, which would not only prevent the occurrence of a number of issues with the law enforcement officer, but would also serve as an optimization of the production of comprehensive examinations. Evaluation of an expert opinion is a multifaceted intellectual activity that involves the resolution of a complex of procedural and substantive issues. The objects of assessment, along with the expert's opinion, are also procedural documents, which reflect all the actions, the production of which ensured the preparation and appointment of the examination. The list of criteria that the expert opinion must satisfy is standard for all evidence – admissibility, relevance and reliability (part 1 of article 88 of the Criminal Procedure Code of the Russian Federation), but at the same time, the assessment of each of the properties of the evidence “expert’s opinion” should be carried out taking into account the specifics of its formations. At the same time, when evaluating the admissibility of the expert’s opinion, it is necessary to pay attention to data indicating the legality / illegality of the subject of initiating a forensic examination and the direct subject of its production. The Author insists on the need for the subject of the assessment to know the content of the expert's opinion of the entire required set of normative sources and emphasizes that there should be constant monitoring of changes to existing regulations, as well as the publication of new ones related to the area under consideration.
{"title":"Certain Issues of Judicial Evaluation of an Expert’s Opinion","authors":"E. V. Elagina","doi":"10.19073/2658-7602-2022-19-4-384-398","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-4-384-398","url":null,"abstract":"The article deals with local issues of assessing an expert’s opinion: the legality of the subject of initiating a forensic examination and the direct subject of its production. The scope of the Author’s interests, teaching experience and scientific activity make it possible to classify these issues as “latent”, since their non-obviousness is determined both by the established law judicial practice and by the imperfection of the legal regulation of forensic examination in criminal proceedings. Along with the main issues, attention is paid to the genesis of the institution of forensic examination in criminal proceedings, which aims to demonstrate the continuity of its legal regulation, and also to draw attention to the fact that some approaches used by the legislator in the Code of Criminal Procedure of the RSFSR could be preserved in the current criminal procedure law, which would not only prevent the occurrence of a number of issues with the law enforcement officer, but would also serve as an optimization of the production of comprehensive examinations. Evaluation of an expert opinion is a multifaceted intellectual activity that involves the resolution of a complex of procedural and substantive issues. The objects of assessment, along with the expert's opinion, are also procedural documents, which reflect all the actions, the production of which ensured the preparation and appointment of the examination. The list of criteria that the expert opinion must satisfy is standard for all evidence – admissibility, relevance and reliability (part 1 of article 88 of the Criminal Procedure Code of the Russian Federation), but at the same time, the assessment of each of the properties of the evidence “expert’s opinion” should be carried out taking into account the specifics of its formations. At the same time, when evaluating the admissibility of the expert’s opinion, it is necessary to pay attention to data indicating the legality / illegality of the subject of initiating a forensic examination and the direct subject of its production. The Author insists on the need for the subject of the assessment to know the content of the expert's opinion of the entire required set of normative sources and emphasizes that there should be constant monitoring of changes to existing regulations, as well as the publication of new ones related to the area under consideration.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44643743","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 : 2022-09-20DOI: 10.19073/2658-7602-2022-19-3-233-244
K. Dovgan
The article analyzes individual legal acts regulating the issues of delimitation of the jurisdiction and powers of the Russian Federation and the constituent entities of the Russian Federation in terms of legal technique, in particular, the presence of elements of a framework legal regulation. Separate aspects of framework legal regulation from the point of view of constitutional law, the purpose of this study is to study the legal technique, tools of framework legal regulation. The mechanism of framework legal regulation exists in the field of delimitation of the subjects of jurisdiction and powers of federal government bodies and its subjects. From the point of view of legal technique, signs of framework legal regulation can be traced in the legislation of the USSR, however, conceptual changes in the development of federal relations began to occur at the end of the 20th century. An analysis of the legal acts that were signed before the popular vote on the adoption of the Constitution of the Russian Federation is essential in the process of determining the legal tools that the legislator used in regulating federal relations in the Russian Federation. Regulatory legal acts, including the Federal Treaty, were of great importance in the process of centralization of state power in our country, contributed to preventing the withdrawal of the autonomous union republics of the RSFSR from its composition. The Federal Treaty has certain features, on the technical and legal side, the text contains polysemy, relatively certain norms that create uncertainty in legal regulation, on the one hand, and on the other hand, in some Treaties there is a condition for further specification of legal relations, which allows taking into account the local features of the regions in further legal regulation. In complex states, the relationship between federal authorities and subjects of the federation is important, first of all, in order to carry out the functions of the state. From the point of view of the methodological concept of historicism, it is possible to explore the development of legal means of framework legal regulation, which were laid down during the formation and development of federal relations in Russia. Based on the results of the study, certain problems were identified, as well as generalizing conclusions were made.
{"title":"The Development of Framework Legal Regulation in the Field of Delimitation of Subjects of Jurisdiction and Powers of Federal Government Bodies of the Russian Federation and Its Subjects","authors":"K. Dovgan","doi":"10.19073/2658-7602-2022-19-3-233-244","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-3-233-244","url":null,"abstract":"The article analyzes individual legal acts regulating the issues of delimitation of the jurisdiction and powers of the Russian Federation and the constituent entities of the Russian Federation in terms of legal technique, in particular, the presence of elements of a framework legal regulation. Separate aspects of framework legal regulation from the point of view of constitutional law, the purpose of this study is to study the legal technique, tools of framework legal regulation. The mechanism of framework legal regulation exists in the field of delimitation of the subjects of jurisdiction and powers of federal government bodies and its subjects. From the point of view of legal technique, signs of framework legal regulation can be traced in the legislation of the USSR, however, conceptual changes in the development of federal relations began to occur at the end of the 20th century. An analysis of the legal acts that were signed before the popular vote on the adoption of the Constitution of the Russian Federation is essential in the process of determining the legal tools that the legislator used in regulating federal relations in the Russian Federation. Regulatory legal acts, including the Federal Treaty, were of great importance in the process of centralization of state power in our country, contributed to preventing the withdrawal of the autonomous union republics of the RSFSR from its composition. The Federal Treaty has certain features, on the technical and legal side, the text contains polysemy, relatively certain norms that create uncertainty in legal regulation, on the one hand, and on the other hand, in some Treaties there is a condition for further specification of legal relations, which allows taking into account the local features of the regions in further legal regulation. In complex states, the relationship between federal authorities and subjects of the federation is important, first of all, in order to carry out the functions of the state. From the point of view of the methodological concept of historicism, it is possible to explore the development of legal means of framework legal regulation, which were laid down during the formation and development of federal relations in Russia. Based on the results of the study, certain problems were identified, as well as generalizing conclusions were made.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43720167","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 : 2022-09-20DOI: 10.19073/2658-7602-2022-19-3-245-252
A. V. Afanasievskaya
With the development of the state and society, changes in legal relations inevitably occur. The ongoing changes also apply to various categories of the population. Minors, often with unlimited access to the Internet using information technology, are at particular risk. This applies to negative information posted on the network, which often destroys moral principles and causes significant damage to education, even with the proper performance of their duties by parents. The situation is aggravated by the fact that the number of offenses and crimes committed by minors is increasing, which often occurs under the influence of a group or propaganda of Internet users. Both criminal and administrative legislation establish a certain age from which persons can be held liable for one or another type of responsibility. Civil law also limits the age at which a person can be fully liable. Responsibility for children under this age is borne by parents, since it is they who are entrusted with the duty of education. The Author examines the types of civil liability of minors. Law enforcement practice in civil cases involving minors is analyzed. An examination is given of such a new phenomenon as bullying, which has recently been actively covered in legal literature. This is primarily due to the fact that minors, due to mental immaturity, sometimes do not realize their behavior in a team, as a result, causing aggressive persecution of other minors. As a result, people who have been bullied inflict moral and sometimes physical suffering. Since there are no clear instructions in the civil legislation regarding the distribution of responsibility between the child's parents, the Author provides scientific views, as well as the interpretation of the legal relations in question in judicial practice. In conclusion, the results of the study are summarized, conclusions are drawn about the need to bring the norms of civil and family legislation into line and consolidate a unified procedure for recovering damages in case of causing it to minors
{"title":"On the Issue of Civil Liability of Minors","authors":"A. V. Afanasievskaya","doi":"10.19073/2658-7602-2022-19-3-245-252","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-3-245-252","url":null,"abstract":"With the development of the state and society, changes in legal relations inevitably occur. The ongoing changes also apply to various categories of the population. Minors, often with unlimited access to the Internet using information technology, are at particular risk. This applies to negative information posted on the network, which often destroys moral principles and causes significant damage to education, even with the proper performance of their duties by parents. The situation is aggravated by the fact that the number of offenses and crimes committed by minors is increasing, which often occurs under the influence of a group or propaganda of Internet users. Both criminal and administrative legislation establish a certain age from which persons can be held liable for one or another type of responsibility. Civil law also limits the age at which a person can be fully liable. Responsibility for children under this age is borne by parents, since it is they who are entrusted with the duty of education. The Author examines the types of civil liability of minors. Law enforcement practice in civil cases involving minors is analyzed. An examination is given of such a new phenomenon as bullying, which has recently been actively covered in legal literature. This is primarily due to the fact that minors, due to mental immaturity, sometimes do not realize their behavior in a team, as a result, causing aggressive persecution of other minors. As a result, people who have been bullied inflict moral and sometimes physical suffering. Since there are no clear instructions in the civil legislation regarding the distribution of responsibility between the child's parents, the Author provides scientific views, as well as the interpretation of the legal relations in question in judicial practice. In conclusion, the results of the study are summarized, conclusions are drawn about the need to bring the norms of civil and family legislation into line and consolidate a unified procedure for recovering damages in case of causing it to minors","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68353720","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：