Pub Date : 2022-06-20DOI: 10.19073/2658-7602-2022-19-2-176-184
O. Chelysheva
The article is devoted to a comprehensive study of the investigative experiment as one of the types of procedural actions performed within the framework of criminal proceedings. In the introduction, the genesis of the theoretical foundations of the investigative experiment is considered, the relevance of the topic of the article in the modern setting is indicated. The Author identified problems associated with understanding the investigative method of research, which underlies the investigative experiment as an investigative action, noted the controversy of individual judgments expressed in forensic literature. The Author refutes an attempt to define the essence of the investigative experiment through the concept of «reproduction». In this regard, the legislative approach to the definition of an investigative experiment has been criticized, which does not make it possible to distinguish an investigative experiment from other investigative actions related to the reproduction of actions, events, reconstruction of the situation, etc. Particularly important is the delimitation of the investigative experiment from the verification of testimony on the spot. The necessity of formulating the definition of the concept of an investigative experiment through the concept of «experience» is substantiated. In addition, the issues of classification of investigative experiments, which are based on the intended purpose of the investigative action, are considered. The theoretical and practical significance of the proposed classification is substantiated. The Author of the article describes the features of the tactics of conducting an investigative experiment, depending on its assignment to a particular group. In particular, the features of the use of «props» used in the process of experiments, determining the composition of the participants in the investigative action, the need to recreate the conditions of a real event are reflected. In addition, the issues of using the results of an investigative experiment in proving in criminal cases are raised, in connection with which questions are raised about the features of evaluating the results of the investigative action in question. Thus, within the framework of the article, the epistemological essence of the investigative experiment is investigated, the definition of the concept of this investigative action is formulated, the types of investigative experiments are presented and their content is disclosed. The main tactical recommendations for the production of certain types of investigative experiments are substantiated.
{"title":"Problems of Theory and Practice of Investigative Experiment","authors":"O. Chelysheva","doi":"10.19073/2658-7602-2022-19-2-176-184","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-2-176-184","url":null,"abstract":"The article is devoted to a comprehensive study of the investigative experiment as one of the types of procedural actions performed within the framework of criminal proceedings. In the introduction, the genesis of the theoretical foundations of the investigative experiment is considered, the relevance of the topic of the article in the modern setting is indicated. The Author identified problems associated with understanding the investigative method of research, which underlies the investigative experiment as an investigative action, noted the controversy of individual judgments expressed in forensic literature. The Author refutes an attempt to define the essence of the investigative experiment through the concept of «reproduction». In this regard, the legislative approach to the definition of an investigative experiment has been criticized, which does not make it possible to distinguish an investigative experiment from other investigative actions related to the reproduction of actions, events, reconstruction of the situation, etc. Particularly important is the delimitation of the investigative experiment from the verification of testimony on the spot. The necessity of formulating the definition of the concept of an investigative experiment through the concept of «experience» is substantiated. In addition, the issues of classification of investigative experiments, which are based on the intended purpose of the investigative action, are considered. The theoretical and practical significance of the proposed classification is substantiated. The Author of the article describes the features of the tactics of conducting an investigative experiment, depending on its assignment to a particular group. In particular, the features of the use of «props» used in the process of experiments, determining the composition of the participants in the investigative action, the need to recreate the conditions of a real event are reflected. In addition, the issues of using the results of an investigative experiment in proving in criminal cases are raised, in connection with which questions are raised about the features of evaluating the results of the investigative action in question. Thus, within the framework of the article, the epistemological essence of the investigative experiment is investigated, the definition of the concept of this investigative action is formulated, the types of investigative experiments are presented and their content is disclosed. The main tactical recommendations for the production of certain types of investigative experiments are substantiated.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41320348","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 : 2022-06-20DOI: 10.19073/2658-7602-2022-19-2-156-164
G. D. Badzgaradze
The Author considers some debatable issues of establishing the place of fraud committed using information technology. The result of the study is the conclusion that the current development of criminal procedure legislation does not allow to adequately resolve practical problems and conflicts, which are expressed in the failure to resolve the issues of determining the place of committing fraud, the subject of which is non-cash funds, when it was carried out through several banking and non-banking transfers of non-cash funds in favor of the criminal, and proposes a solution to the problem by indicating in the decision of the Plenum of the Supreme Court dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement”, that the place of fraud, the subject of which are non-cash funds is the location (actual address) of the financial institution (branch, division, representative office of the financial institution), in which the victim had an account opened and from which the last or most transaction in the criminal interests of the subject of the crime. These changes, according to the Author, will allow solving practical problems that arise when determining the place of the preliminary investigation of fraud committed using information technology. An analysis is made of the system of places that can be considered a place of committing fraud using information technology, in a forensic sense. The Author comes to the conclusion that among such places one can single out the location of the offender, the location of the victim, as well as the location of the victim's funds, which were turned by the criminal in his favor. The result of the analysis of the problem of establishing the last place of committing fraud carried out using information technology is a statement of the absence of unequivocal answers, in connection with which the Author expresses the hope of receiving not only constructive suggestions, but also any opinions that would make it possible to get closer to its resolution.
{"title":"Issues of Establishing the Place of Fraud Carried Out Using Information Technologies: Forensic and Criminal Procedure Aspects","authors":"G. D. Badzgaradze","doi":"10.19073/2658-7602-2022-19-2-156-164","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-2-156-164","url":null,"abstract":"The Author considers some debatable issues of establishing the place of fraud committed using information technology. The result of the study is the conclusion that the current development of criminal procedure legislation does not allow to adequately resolve practical problems and conflicts, which are expressed in the failure to resolve the issues of determining the place of committing fraud, the subject of which is non-cash funds, when it was carried out through several banking and non-banking transfers of non-cash funds in favor of the criminal, and proposes a solution to the problem by indicating in the decision of the Plenum of the Supreme Court dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement”, that the place of fraud, the subject of which are non-cash funds is the location (actual address) of the financial institution (branch, division, representative office of the financial institution), in which the victim had an account opened and from which the last or most transaction in the criminal interests of the subject of the crime. These changes, according to the Author, will allow solving practical problems that arise when determining the place of the preliminary investigation of fraud committed using information technology. An analysis is made of the system of places that can be considered a place of committing fraud using information technology, in a forensic sense. The Author comes to the conclusion that among such places one can single out the location of the offender, the location of the victim, as well as the location of the victim's funds, which were turned by the criminal in his favor. The result of the analysis of the problem of establishing the last place of committing fraud carried out using information technology is a statement of the absence of unequivocal answers, in connection with which the Author expresses the hope of receiving not only constructive suggestions, but also any opinions that would make it possible to get closer to its resolution.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44987198","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 : 2022-06-20DOI: 10.19073/2658-7602-2022-19-2-199-211
Yury V. Derishev, E. I. Chekmezova, D. D. Tuleva, M. Kiseleva, P. V. Kozlovskiy
This publication continues the experience of covering the work of the Scientific and Methodological Council under the Prosecutor of the Omsk Region, among the main tasks of which remains the development and discussion, together with representatives of legal science, of sound recommendations on problematic issues of prosecutorial supervision, legislation and law enforcement practice, legal advisory opinions on issues arising in prosecutorial practice. In this regard, the article proposes to discuss certain topical problems of law enforcement practice raised at one of the last meetings of the Scientific and Methodological Council under the Prosecutor of the Omsk Region. Thus, based on a systematic analysis of errors in the implementation of the institution of a judicial fine, it is proposed to provide prosecutors with systematic supervision over compliance with the requirements of the law when it is applied, which requires a more thorough study of criminal cases, as well as a proper initiative to establish the circumstances associated with the application of a judicial fine, and timely challenging unfounded court decisions. In addition, the practice of law enforcement highlights the fundamental problem of a unified interpretation of the grounds for terminating a criminal case (criminal prosecution) against a person who has committed an act prohibited by criminal law in a state of insanity. Based on the analysis of legal situations and various approaches to their resolution, the article argues for the need to make a decision on the studied criminal cases on the grounds of paragraph 4 of part 1 of Art. 24 of the Criminal Procedure Code of the Russian Federation in connection with the death of a person involved in criminal proceedings. In other similar situations, but related to the criminal prosecution of these persons, the decision must be made taking into account the specific circumstances of the criminal case.
{"title":"Some Issues of Terminating a Criminal Case","authors":"Yury V. Derishev, E. I. Chekmezova, D. D. Tuleva, M. Kiseleva, P. V. Kozlovskiy","doi":"10.19073/2658-7602-2022-19-2-199-211","DOIUrl":"https://doi.org/10.19073/2658-7602-2022-19-2-199-211","url":null,"abstract":"This publication continues the experience of covering the work of the Scientific and Methodological Council under the Prosecutor of the Omsk Region, among the main tasks of which remains the development and discussion, together with representatives of legal science, of sound recommendations on problematic issues of prosecutorial supervision, legislation and law enforcement practice, legal advisory opinions on issues arising in prosecutorial practice. In this regard, the article proposes to discuss certain topical problems of law enforcement practice raised at one of the last meetings of the Scientific and Methodological Council under the Prosecutor of the Omsk Region. Thus, based on a systematic analysis of errors in the implementation of the institution of a judicial fine, it is proposed to provide prosecutors with systematic supervision over compliance with the requirements of the law when it is applied, which requires a more thorough study of criminal cases, as well as a proper initiative to establish the circumstances associated with the application of a judicial fine, and timely challenging unfounded court decisions. In addition, the practice of law enforcement highlights the fundamental problem of a unified interpretation of the grounds for terminating a criminal case (criminal prosecution) against a person who has committed an act prohibited by criminal law in a state of insanity. Based on the analysis of legal situations and various approaches to their resolution, the article argues for the need to make a decision on the studied criminal cases on the grounds of paragraph 4 of part 1 of Art. 24 of the Criminal Procedure Code of the Russian Federation in connection with the death of a person involved in criminal proceedings. In other similar situations, but related to the criminal prosecution of these persons, the decision must be made taking into account the specific circumstances of the criminal case.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41559432","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-433-444
A. Syntin
The problem of prohibited substances (methods) abuse in sport has existed for quite a long time. On the one hand, by criminalizing certain anti-doping rules violations, legislation expanded the liability limits of coaches, sports medical personnel, and of other specialists in the field of sports, which can be regarded positively. On the other hand, it made certain mistakes which impeded the effectiveness of these laws enforcement. Among other things, there is a problem with definition of the term “inducement”. The term itself is defined in the note to article 2301 of the Russian Federation Criminal Code, but there is a controversy in demarcation of inducement. methods. While deception, the use of violence and instructions as inducement methods are socially dangerous at substantial level and can be regarded as methods of committing the crime, the provision of information or the prohibited substances themselves (means of using methods) cannot be regarded as methods of committing the crime. Such a definition of inducement means also leads to contradictions with the corpus delicti under Article 2302 of the Russian Federation Criminal Code. In addition, there are also different interpretations regarding the methods of inducement, coercion, involvement in the other corpus delicti, which, all together with the lack of a unified interpretation of the terms affects the possibility of bringing the guilty persons, especially coaches, sports medical personnel and other specialists in the field of sports, to criminal responsibility. The survey conducted among lawyers also has revealed difficulties in distinguishing these terms in practice. Based on the criminal legislation analysis, the author comes to the conclusion that the amendments in the Russian Federation Criminal Code are necessary.
{"title":"On the Appropriateness of the Use of the Term “Inducement” in Article 2301 of the Criminal Code of the Russian Federation","authors":"A. Syntin","doi":"10.19073/2658-7602-2021-18-4-433-444","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-433-444","url":null,"abstract":"The problem of prohibited substances (methods) abuse in sport has existed for quite a long time. On the one hand, by criminalizing certain anti-doping rules violations, legislation expanded the liability limits of coaches, sports medical personnel, and of other specialists in the field of sports, which can be regarded positively. On the other hand, it made certain mistakes which impeded the effectiveness of these laws enforcement. Among other things, there is a problem with definition of the term “inducement”. The term itself is defined in the note to article 2301 of the Russian Federation Criminal Code, but there is a controversy in demarcation of inducement. methods. While deception, the use of violence and instructions as inducement methods are socially dangerous at substantial level and can be regarded as methods of committing the crime, the provision of information or the prohibited substances themselves (means of using methods) cannot be regarded as methods of committing the crime. Such a definition of inducement means also leads to contradictions with the corpus delicti under Article 2302 of the Russian Federation Criminal Code. In addition, there are also different interpretations regarding the methods of inducement, coercion, involvement in the other corpus delicti, which, all together with the lack of a unified interpretation of the terms affects the possibility of bringing the guilty persons, especially coaches, sports medical personnel and other specialists in the field of sports, to criminal responsibility. The survey conducted among lawyers also has revealed difficulties in distinguishing these terms in practice. Based on the criminal legislation analysis, the author comes to the conclusion that the amendments in the Russian Federation Criminal Code are necessary.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46574550","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-445-459
V. I. Balko
The relevance and novelty of the topic of the article is connected with the fact that for the first time the improved classification of the properties of human papillary patterns and their displays and the dynamic trend of expanding the legal base of fingerprint registration in the world are considered. The goal is to systematize the properties of human papillary patterns and their representations. General scientific and special methods were used. The analysis of the literature and the author's practice allow us to identify and consider the following properties of papillary patterns and their mappings, which were divided into three groups for cognitive purposes: their own properties, the properties of mappings, and the properties of the fat-rich substance of the human papillary pattern and its trace. For the first time, the properties of the poly-fat substance of the human papillary pattern and its trace are presented, which is important in view of the trend in the development of complex fingerprint examination. For the first time, the first and second groups are conditionally divided into four subgroups: for solving identification, diagnostic, classification and situational problems. For the first time, the third group is further conditionally divided into four subgroups: according to the interaction of the human body fat with the carrier object; according to the isolation of the human body fat trace; according to the dynamics of the preservation and contrast of the display of the fat-free substance of the human papillary pattern. On the other hand, the properties of papillary patterns themselves are divided into basic properties and properties for solving identification and non-identification problems, respectively. The author's definition of the following concepts is presented: "basic properties of human papillary patterns" and "properties of human papillary patterns", "basic properties of human papillary patterns mappings" and "properties of human papillary patterns mappings", "basic properties of human papillary matter" and "properties of human papillary matter", "basic properties of human papillary matter" and" properties of human papillary matter". This provides an opportunity for specialists and teachers to improve their cognitive and practical activities, and for those responsible and competent for the organization of examinations to consider creating a center for comprehensive fingerprint examination.
{"title":"Modern Classification of the Properties of Papillary Patterns of Human Hands and Feet for the Solution of Identification and Non-Identification Problems in Forensic Expert Activities","authors":"V. I. Balko","doi":"10.19073/2658-7602-2021-18-4-445-459","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-445-459","url":null,"abstract":"The relevance and novelty of the topic of the article is connected with the fact that for the first time the improved classification of the properties of human papillary patterns and their displays and the dynamic trend of expanding the legal base of fingerprint registration in the world are considered. The goal is to systematize the properties of human papillary patterns and their representations. General scientific and special methods were used. The analysis of the literature and the author's practice allow us to identify and consider the following properties of papillary patterns and their mappings, which were divided into three groups for cognitive purposes: their own properties, the properties of mappings, and the properties of the fat-rich substance of the human papillary pattern and its trace. For the first time, the properties of the poly-fat substance of the human papillary pattern and its trace are presented, which is important in view of the trend in the development of complex fingerprint examination. For the first time, the first and second groups are conditionally divided into four subgroups: for solving identification, diagnostic, classification and situational problems. For the first time, the third group is further conditionally divided into four subgroups: according to the interaction of the human body fat with the carrier object; according to the isolation of the human body fat trace; according to the dynamics of the preservation and contrast of the display of the fat-free substance of the human papillary pattern. On the other hand, the properties of papillary patterns themselves are divided into basic properties and properties for solving identification and non-identification problems, respectively. The author's definition of the following concepts is presented: \"basic properties of human papillary patterns\" and \"properties of human papillary patterns\", \"basic properties of human papillary patterns mappings\" and \"properties of human papillary patterns mappings\", \"basic properties of human papillary matter\" and \"properties of human papillary matter\", \"basic properties of human papillary matter\" and\" properties of human papillary matter\". This provides an opportunity for specialists and teachers to improve their cognitive and practical activities, and for those responsible and competent for the organization of examinations to consider creating a center for comprehensive fingerprint examination.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44560632","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-471-484
O. Beketov, A. D. Maile, A. V. Kuyanova
Against the background of the widespread introduction of a wide range of social and medical measures to protect the health of citizens in order to prevent the spread of the new coronavirus infection COVID-19, attention is drawn to the growing socio-political trend of medicalization of the entire administrative and public sphere. It is reflected in the increasingly clear "securitization" of many parts of public power, which is reflected in the ongoing redistribution and transformation of police powers. A number of world governments are taking actions to combat the pandemic, from imposing responsibility for poor compliance with the introduced antiepidemiological restrictions to developing a vaccine and conducting mass vaccinations, as a result of which lawmaking is actively pursued. In the extraordinary conditions in Russia, as in other countries of the world, the most effective measures to prevent the spread of COVID-19 infection and overcome its consequences were in demand - measures of administrative coercion. The state actively uses the entire arsenal of legal means, including measures of administrative prevention, administrative procedural support and administrative punishment. In the article, the authors analyzed the administrative and legal norms of the Russian Federation and the Federal Republic of Germany, aimed at preventing the import and spread of a new corona virus infection (COVID-19). The trends in the expansion of the scale of administrative and police control, the influence of the state on changing the standards of behavior of citizens and the lifestyle of the population, and the movement of significant segments of crime into cyberspace are illustrated. Comprehension of the latest domestic and foreign experience, forms and methods of police-legal influence in order to reflect the danger, confirms the high relevance and important theoretical significance of the study. The authors conclude that at present both for Russia and for Germany the issues of redistribution and transformation of police powers in the administrative-public sphere of any state, reflecting the processes of medicalization and securitization of various links and sectors of public power in response to existential threats, are relevant and promising. directions of scientific research.
{"title":"Medicalization and Securitization of the Administrative-Public Sphere in the Conditions of the Pandemic in Russia and Germany","authors":"O. Beketov, A. D. Maile, A. V. Kuyanova","doi":"10.19073/2658-7602-2021-18-4-471-484","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-471-484","url":null,"abstract":"Against the background of the widespread introduction of a wide range of social and medical measures to protect the health of citizens in order to prevent the spread of the new coronavirus infection COVID-19, attention is drawn to the growing socio-political trend of medicalization of the entire administrative and public sphere. It is reflected in the increasingly clear \"securitization\" of many parts of public power, which is reflected in the ongoing redistribution and transformation of police powers. A number of world governments are taking actions to combat the pandemic, from imposing responsibility for poor compliance with the introduced antiepidemiological restrictions to developing a vaccine and conducting mass vaccinations, as a result of which lawmaking is actively pursued. In the extraordinary conditions in Russia, as in other countries of the world, the most effective measures to prevent the spread of COVID-19 infection and overcome its consequences were in demand - measures of administrative coercion. The state actively uses the entire arsenal of legal means, including measures of administrative prevention, administrative procedural support and administrative punishment. In the article, the authors analyzed the administrative and legal norms of the Russian Federation and the Federal Republic of Germany, aimed at preventing the import and spread of a new corona virus infection (COVID-19). The trends in the expansion of the scale of administrative and police control, the influence of the state on changing the standards of behavior of citizens and the lifestyle of the population, and the movement of significant segments of crime into cyberspace are illustrated. Comprehension of the latest domestic and foreign experience, forms and methods of police-legal influence in order to reflect the danger, confirms the high relevance and important theoretical significance of the study. The authors conclude that at present both for Russia and for Germany the issues of redistribution and transformation of police powers in the administrative-public sphere of any state, reflecting the processes of medicalization and securitization of various links and sectors of public power in response to existential threats, are relevant and promising. directions of scientific research.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43313641","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-460-470
S. Agamagomedova
The article discusses the theoretical justification of the risk-based approach in the implementation of state control and supervision, and also highlights the problems of the practical use of this approach in the context of the reform of control and supervision activities. The author compares the positions regarding the risk category in economic and legal studies, justifies the growing interest in the use of risk technologies in public administration. An analysis of the use of the risk category in the legal and regulatory field allows us to distinguish two positions in relation to risk: risk as a possible occurrence of an event that has a negative effect, and risk as the probability of its occurrence. The risk institute belongs to the general theory of law and at the same time finds development in industry research. In modern conditions, the law is inherent in the task of preventing, overcoming and minimizing risks in various areas of social reality with their simultaneous recognition and assumption. The author considers the evolution of the application of the risk management system in the implementation of customs and tax control, substantiates the transformation of its interpretation. Based on the analysis, it is concluded that the risk-based approach in relation to the system of state control and supervision should be interpreted as the principle of a modern system of state control and supervision; the condition of its selectivity and sufficiency; means of reducing the administrative burden on the controlled sphere; a means of stimulating the controlled sphere in a given direction and a modern method of organizing and implementing state control and supervision. Narrow and broad approaches in positioning risks in the implementation of state control and supervision are highlighted. In the first case, risk is understood as the probability of non-compliance with mandatory requirements. A broad approach involves two factors: the likelihood of non-compliance and the consequences of such non-compliance. A characteristic is given to such characteristics of a risk-based approach in the implementation of state control and supervision: staging, agile, stimulating the preventive component of state control and supervision, the development of interagency cooperation, the connection with the digitalization of control and surveillance activities. The following are identified as the problems of applying the risk-based approach in the implementation of state control and supervision: the problems of developing and using criteria for the risk categorization of controlled persons, correlating these criteria with indicators of the effectiveness and efficiency of control and supervision activities; lack of correlation between control and supervisory procedures and proceedings on administrative offenses; the problem of using the category of good faith in the implementation of control and supervision activities and others. Solving the identified problems will improve
{"title":"Risk-Oriented Approach in the Implementation of Control and Supervision Activities: Theoretical Justification and Problems of Application","authors":"S. Agamagomedova","doi":"10.19073/2658-7602-2021-18-4-460-470","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-460-470","url":null,"abstract":"The article discusses the theoretical justification of the risk-based approach in the implementation of state control and supervision, and also highlights the problems of the practical use of this approach in the context of the reform of control and supervision activities. The author compares the positions regarding the risk category in economic and legal studies, justifies the growing interest in the use of risk technologies in public administration. An analysis of the use of the risk category in the legal and regulatory field allows us to distinguish two positions in relation to risk: risk as a possible occurrence of an event that has a negative effect, and risk as the probability of its occurrence. The risk institute belongs to the general theory of law and at the same time finds development in industry research. In modern conditions, the law is inherent in the task of preventing, overcoming and minimizing risks in various areas of social reality with their simultaneous recognition and assumption. The author considers the evolution of the application of the risk management system in the implementation of customs and tax control, substantiates the transformation of its interpretation. Based on the analysis, it is concluded that the risk-based approach in relation to the system of state control and supervision should be interpreted as the principle of a modern system of state control and supervision; the condition of its selectivity and sufficiency; means of reducing the administrative burden on the controlled sphere; a means of stimulating the controlled sphere in a given direction and a modern method of organizing and implementing state control and supervision. Narrow and broad approaches in positioning risks in the implementation of state control and supervision are highlighted. In the first case, risk is understood as the probability of non-compliance with mandatory requirements. A broad approach involves two factors: the likelihood of non-compliance and the consequences of such non-compliance. A characteristic is given to such characteristics of a risk-based approach in the implementation of state control and supervision: staging, agile, stimulating the preventive component of state control and supervision, the development of interagency cooperation, the connection with the digitalization of control and surveillance activities. The following are identified as the problems of applying the risk-based approach in the implementation of state control and supervision: the problems of developing and using criteria for the risk categorization of controlled persons, correlating these criteria with indicators of the effectiveness and efficiency of control and supervision activities; lack of correlation between control and supervisory procedures and proceedings on administrative offenses; the problem of using the category of good faith in the implementation of control and supervision activities and others. Solving the identified problems will improve ","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44446291","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-423-432
E. Sidorova
The modern domestic education system is developing and improving. At the same time, it often remains unprotected from various kinds of threats and dangers of a criminal nature. Of particular concern is the criminality of students, who, as practice shows, often commit illegal acts directed against other participants in educational relations. It seems that the formation and development of criminal policy in the field of prevention of all existing criminal phenomena in the field of education has an important preventive potential in this aspect. In this article, the author reveals the general and special principles of criminal policy in this sphere of public relations. The author refers to the general principles of legality, justice, humanism, equality of citizens before the law, democracy, as well as the principle of the inevitability of responsibility in the implementation of criminal policy. In turn, the special principles of criminal policy in the field of crime prevention in the educational environment include: the principle of matching tasks, powers and resources; the principle of the proactive nature of strategic decisions; the principle of scientific; the principle of complexity; the principle of compliance with morality; the principle of purposefulness; the principle of combining unity of command and collegiality. The analysis of the implementation of these principles has shown that at present, oddly enough, they are often violated during the implementation of criminal policy. However, the author believes that such violations are inevitable, since, in an effort to comply with one principle, the state to a certain extent violates the second one. In general, the criminal policy is reflected primarily in the existing normative legal acts. The analysis of these acts shows that at the present time a lot of attention is paid to the criminal policy in the field of education, but there is still no unified state strategy for the development of this area. The main goal of criminal policy in the field of crime prevention in the educational environment, according to the author, is to influence criminal phenomena by developing theoretical ideas aimed at countering and preventing crime. The author notes that the modern criminal policy of Russia is formed in two directions. The first direction is to improve legislation, and the second direction implies the formation and improvement of criminology, which reveals the nature of the grounds of crime and develops measures to prevent it. It seems that the development of these areas, as well as other scientific research in the field of criminal policy in the field of crime prevention in the educational environment, will contribute to the development of a unified state system for the prevention of all existing criminal phenomena in the field of education.
{"title":"Principles and Significance of Criminal Policy in the Field of Crime Prevention in the Educational Environment","authors":"E. Sidorova","doi":"10.19073/2658-7602-2021-18-4-423-432","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-423-432","url":null,"abstract":"The modern domestic education system is developing and improving. At the same time, it often remains unprotected from various kinds of threats and dangers of a criminal nature. Of particular concern is the criminality of students, who, as practice shows, often commit illegal acts directed against other participants in educational relations. It seems that the formation and development of criminal policy in the field of prevention of all existing criminal phenomena in the field of education has an important preventive potential in this aspect. In this article, the author reveals the general and special principles of criminal policy in this sphere of public relations. The author refers to the general principles of legality, justice, humanism, equality of citizens before the law, democracy, as well as the principle of the inevitability of responsibility in the implementation of criminal policy. In turn, the special principles of criminal policy in the field of crime prevention in the educational environment include: the principle of matching tasks, powers and resources; the principle of the proactive nature of strategic decisions; the principle of scientific; the principle of complexity; the principle of compliance with morality; the principle of purposefulness; the principle of combining unity of command and collegiality. The analysis of the implementation of these principles has shown that at present, oddly enough, they are often violated during the implementation of criminal policy. However, the author believes that such violations are inevitable, since, in an effort to comply with one principle, the state to a certain extent violates the second one. In general, the criminal policy is reflected primarily in the existing normative legal acts. The analysis of these acts shows that at the present time a lot of attention is paid to the criminal policy in the field of education, but there is still no unified state strategy for the development of this area. The main goal of criminal policy in the field of crime prevention in the educational environment, according to the author, is to influence criminal phenomena by developing theoretical ideas aimed at countering and preventing crime. The author notes that the modern criminal policy of Russia is formed in two directions. The first direction is to improve legislation, and the second direction implies the formation and improvement of criminology, which reveals the nature of the grounds of crime and develops measures to prevent it. It seems that the development of these areas, as well as other scientific research in the field of criminal policy in the field of crime prevention in the educational environment, will contribute to the development of a unified state system for the prevention of all existing criminal phenomena in the field of education.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43280386","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-413-422
A. A. Sitnikov
Introduction. In the process of employees’ labor managemeint, it is possible that the employer uses formally legitimate powers to harm the employee, therefore the article is devoted to studying the problem of employer’s abuse of the right to manage labor. Purpose. Give a legal description of the employer’s abuse of the right to manage labor in the exercise of discretionary powers, determine the relationship between the category of abuse of the right and discrimination in labor relations, and determine the consequences of such abuse, if a gap is identified in the legal regulation of problematic relations between the employer and employees, propose a draft of norms supplementing the Labor Code of the Russian Federation, ensuring proper protection of the rights and legitimate interests of the employees. Methodology. In addition to general scientific methods (analysis, synthesis, analogy), private scientific methods were also used, such as formally legal, systemic and comparative legal. Results. The right to labor management consists of normative permissible powers, with the help of which the operational management of labor is carried out. The exercise of formally legitimate powers with the aim of harming an employee is an abuse of the employer's right to manage labor, so the employer’s unlawful motive is a constituent element of abuse of the right. Actions, the result of which is a violation of the rights of workers, are not an abuse: they should be attributed to discriminatory actions, since the exercise of the right cannot entail a violation of another right. It is concluded that the current legislation does not provide a mechanism to protect employees from abuse by the employer. An analysis of the norms of the Civil Code of the Russian Federation shows that abuse of law is a form of unfair behavior, the principle of good faith is a general legal principle, and the existence in the Labor Code of the Russian Federation of norms providing for special consequences of unfair behavior of the parties to labor relations would help in solving the identified problem. A draft of norms supplementing the Labor Code of the Russian Federation designed to ensure adequate protection of the interests of employees from abuse of rights by the employer is proposed. Conclusion. Both in the doctrine and in practice, there is a confusion of the concepts of employee discrimination and abuse of law by the employer. From the point of view of the theory of law, it is necessary to distinguish between these categories, and the legislation should contain adequate mechanisms to protect employees from abuse of law by the employer.
{"title":"Original scientific article Employer’s Abuse of the Right to Labour Management","authors":"A. A. Sitnikov","doi":"10.19073/2658-7602-2021-18-4-413-422","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-413-422","url":null,"abstract":"Introduction. In the process of employees’ labor managemeint, it is possible that the employer uses formally legitimate powers to harm the employee, therefore the article is devoted to studying the problem of employer’s abuse of the right to manage labor. Purpose. Give a legal description of the employer’s abuse of the right to manage labor in the exercise of discretionary powers, determine the relationship between the category of abuse of the right and discrimination in labor relations, and determine the consequences of such abuse, if a gap is identified in the legal regulation of problematic relations between the employer and employees, propose a draft of norms supplementing the Labor Code of the Russian Federation, ensuring proper protection of the rights and legitimate interests of the employees. Methodology. In addition to general scientific methods (analysis, synthesis, analogy), private scientific methods were also used, such as formally legal, systemic and comparative legal. Results. The right to labor management consists of normative permissible powers, with the help of which the operational management of labor is carried out. The exercise of formally legitimate powers with the aim of harming an employee is an abuse of the employer's right to manage labor, so the employer’s unlawful motive is a constituent element of abuse of the right. Actions, the result of which is a violation of the rights of workers, are not an abuse: they should be attributed to discriminatory actions, since the exercise of the right cannot entail a violation of another right. It is concluded that the current legislation does not provide a mechanism to protect employees from abuse by the employer. An analysis of the norms of the Civil Code of the Russian Federation shows that abuse of law is a form of unfair behavior, the principle of good faith is a general legal principle, and the existence in the Labor Code of the Russian Federation of norms providing for special consequences of unfair behavior of the parties to labor relations would help in solving the identified problem. A draft of norms supplementing the Labor Code of the Russian Federation designed to ensure adequate protection of the interests of employees from abuse of rights by the employer is proposed. Conclusion. Both in the doctrine and in practice, there is a confusion of the concepts of employee discrimination and abuse of law by the employer. From the point of view of the theory of law, it is necessary to distinguish between these categories, and the legislation should contain adequate mechanisms to protect employees from abuse of law by the employer.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48750722","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 : 2021-12-27DOI: 10.19073/2658-7602-2021-18-4-398-412
I. L. Vershok
The article is devoted to the study of legal relationship as a phenomenon that exists in two modes of being of law: legal reality and legal validity. Classical approaches to the definition of a legal relationship as a social relationship regulated by law are criticized. The understanding of the legal relationship as a result of the implementation of legal norm is also criticized. It is recognized that these approaches do not fully provide a scientific characteristic of legal relationships as a social and legal phenomenon. Instead of the usually distinguished elements of a legal relationship in the form of a subject, object and content, it is proposed to study its dynamic parameters. The dynamics of a legal relationship is considered as a result of the intentionality of the legal consciousness of its subject. In legal reality, a legal relationship is studied as a social action in the conditions of adaptation of the subject to the environment. This legal relationship is due to the general normativity of biological, social and technical origin. The vital normativity of legal reality is considered as a determinant of legal relations. The locus of control in this legal relationship is focused on the subject exercising its rights and fulfilling its obligations. In legal validity, the legal relationship is due to the intentionality of the legal consciousness of the subject to implement legal norms through legal interaction with other participants in the legal relationship. The normativity of legal reality is based on legal regulation through legal acts (individual and general). In such a legal relationship, the subjects exercise their legal capabilities to the fulfillment of the legal duties assigned to other subjects. The locus of control is shifted to other participants in the legal relationship who exercise their rights and perform legal duties. In legal interaction, mutual recognition of the right is provided by the instance and/or the party of the legal relationship. In the legal validity, the physical, social and value, as well as vital normativity are supplemented by legal normativity. It is designed to neutralize social contradictions caused by the limitations of space, as well as the irreversibility of time. It is proved that the proposed concept of legal relations contributes to the solution of practical issues of the primacy of the legal norm or legal relationship, the revision of the criteria for differentiation of the legal system, the determination of the ratio of legal relations and offenses, the scientific consideration of some sectoral problems of the classification of legal relations. It is noted that the proposed concept of a legal relationship as a social action or legal interaction is quite conditional and applicable for cognitive purposes. In practice, quite often there is an intersection or mutual overlap of one type with another, a transition from legal reality to legal reality.
{"title":"Methodological Aspects of the Dynamics of Legal Relationships as a Social and Legal Phenomenon","authors":"I. L. Vershok","doi":"10.19073/2658-7602-2021-18-4-398-412","DOIUrl":"https://doi.org/10.19073/2658-7602-2021-18-4-398-412","url":null,"abstract":"The article is devoted to the study of legal relationship as a phenomenon that exists in two modes of being of law: legal reality and legal validity. Classical approaches to the definition of a legal relationship as a social relationship regulated by law are criticized. The understanding of the legal relationship as a result of the implementation of legal norm is also criticized. It is recognized that these approaches do not fully provide a scientific characteristic of legal relationships as a social and legal phenomenon. Instead of the usually distinguished elements of a legal relationship in the form of a subject, object and content, it is proposed to study its dynamic parameters. The dynamics of a legal relationship is considered as a result of the intentionality of the legal consciousness of its subject. In legal reality, a legal relationship is studied as a social action in the conditions of adaptation of the subject to the environment. This legal relationship is due to the general normativity of biological, social and technical origin. The vital normativity of legal reality is considered as a determinant of legal relations. The locus of control in this legal relationship is focused on the subject exercising its rights and fulfilling its obligations. In legal validity, the legal relationship is due to the intentionality of the legal consciousness of the subject to implement legal norms through legal interaction with other participants in the legal relationship. The normativity of legal reality is based on legal regulation through legal acts (individual and general). In such a legal relationship, the subjects exercise their legal capabilities to the fulfillment of the legal duties assigned to other subjects. The locus of control is shifted to other participants in the legal relationship who exercise their rights and perform legal duties. In legal interaction, mutual recognition of the right is provided by the instance and/or the party of the legal relationship. In the legal validity, the physical, social and value, as well as vital normativity are supplemented by legal normativity. It is designed to neutralize social contradictions caused by the limitations of space, as well as the irreversibility of time. It is proved that the proposed concept of legal relations contributes to the solution of practical issues of the primacy of the legal norm or legal relationship, the revision of the criteria for differentiation of the legal system, the determination of the ratio of legal relations and offenses, the scientific consideration of some sectoral problems of the classification of legal relations. It is noted that the proposed concept of a legal relationship as a social action or legal interaction is quite conditional and applicable for cognitive purposes. In practice, quite often there is an intersection or mutual overlap of one type with another, a transition from legal reality to legal reality.","PeriodicalId":33294,"journal":{"name":"Sibirskoe iuridicheskoe obozrenie","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43959046","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}
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