No. 3 (2021): Russian Law: Education, Practice, Research. 2021. № 3

CRIMINAL LAW

Sabitov T. R., Dolinina L. A.

Differentiation of Criminal Responsibility for Petty Commercial Bribery

In 2016, criminal liability for commercial bribery and bribery of an official in the Russian Federation was mitigated: the norms providing for liability for these acts with mitigating circumstances were included in the Criminal Code of the Russian Federation The legislator provided for a small amount of illegal remuneration as such a mitigating circumstance. In this paper, the authors do not aim to criticize the need for such a legislative decision, but it’s very implementation is subjected to criticism in relation to the rule on petty commercial bribery. In the opinion of the authors, the differentiation of responsibility for small commercial bribery (Article 204.2 of the Criminal Code of the Russian Federation) was ill-considered in contrast to the differentiation of responsibility for commercial bribery (Article 204 of the Criminal Code of the Russian Federation). In this regard, in the practice of applying these norms, questions arose, which had to be answered by the Supreme Court of the Russian Federation in the corresponding resolution of the Plenum.

This authors assess the public danger of aggravating circumstances provided for in the article on commercial bribery. On this basis, in order to differentiate responsibility, it was proposed to add a number of aggravating circumstances to the article on petty commercial bribery.

Keywords: petty commercial bribery, bribery of an official, differentiation of criminal liability, qualified staff, competition of norms

 

Gladych N. V.

Qualification of Financial Crimes in Cyberspace

For the correct application of criminal legislation, it is important to understand the essence of a certain act of human behavior, taking into account his motivation and the purpose of the law to be applied. Financial crime in cyberspace is a complex subject to study, but without proper classification it is difficult to determine how to detect it and how to respond to it. At the same time, there is no uniform definition of financial crimes at the international level. The author examines their definitions and classifications proposed by Russian and foreign scholars, as well as those provided in some international legal acts. In addition, the classification of cybercrimes in the Council of Europe Convention on Cybercrime is analyzed. Its main drawback is the lack of a single criterion for distinguishing between crimes.

The author notes that financial crimes are cross-border in nature due to the widespread use of information and communication technologies. The features of money laundering on the Internet, criminal schemes using online payments and online casinos are considered. Attention is drawn to the problems of combating criminals due to their use of virtual currency, which is not regulated at the legislative level. It is emphasized that due to the social danger and complexity of the acts investigated in the article, they should be distinguished as a special type of crime.

Keywords: criminal law, crime, qualification of crimes, financial crime, cybercrime, cyberspace, financial activity

 

Kurdukov A. N.

System of Terrorist Crimes

The article describes the approaches to identifying types of terrorist crimes, which are provided for in the criminal legislation, clarifications of the Plenum of the Supreme Court of the Russian Federation, and instructions from the Prosecutor General’s Office of Russia. The author believes, that an excessively broad approach to terrorist crimes is enshrined in the current legislation,
which creates additional difficulties in qualifying the relevant acts, their delineation from each
other and from related offenses. The legislator is far from always consistent, which leads to
unjustified competition of criminal law norms.

A brief review of criminal law provisions providing for liability for terrorist crimes made it
possible to identify a number of their shortcomings. Many of them are associated with the legislator’s incorrect definition of the direct object of the crime. To resolve them, the author proposes to
place articles of the criminal law on terrorist crimes in Chapter 34 «Crimes against Peace and Security of Mankind», Section XII of the Criminal Code of the Russian Federation. This will make
it possible to overcome contradiction between the elements of terrorist crimes and the doctrine of complicity in a crime.

The author also criticizes the sanctions of articles on terrorist crimes. Their toughening will allow bringing them into conformity with the rules of punishment established by the science of criminal law and enshrined in legislation.

Keywords: terrorism, terrorist activity, terrorist crimes, criminal responsibility, terrorist act, assistance to terrorist activity, sanction, criminal punishment

 

CRIMINAL PROCEDURE

Rudich V. V.

On the Modern System of Measures of Criminal Procedural Coercion – Preventive Measures

The author analyzed the system of preventive measures used in pre-revolutionary Russia, Soviet Union and Russian Federation. The definitions of the relevant concepts are studied. Historical and comparative legal methods were used, as well as relying on the dogmas of legal hermeneutics.

The research showed that the modern system of preventive measures is ineffective: the preventive measures used in criminal proceedings are outdated. To improve the effectiveness of this system it is proposed, in particular, to abandon the measures of restraint of a psychological nature, to identify the measures of a police-compulsory nature as measures that additionally guarantee the use of bail or restriction of freedom. The system of restrictions and obligations should be structured to ensure the proper conduct of the accused who is not taken into custody. The paper indicates the need for conceptual changes in the system of preventive measures.

Keywords: preventive measures, security measures, detention, restriction of certain actions, psychological measures, police-coercive measures, measures of deprivation of liberty

 

Shishkina E. V.

Problems of Protecting of the Rights of Minors Involved in Criminal Proceedings

The positive trend of expanding the rights of minor participants in criminal proceedings does not eliminate the problems of their regulation, including the difference in approaches to determining the scope of rights of minor victims (witnesses), and suspects (accused), as well as their legal representatives. The legislator restricts the list of persons who can be legal representatives of minors in the investigation procedures, as well as their rights in conducting investigative actions. The law does not contain rules governing the conduct of a number of investigative actions involving minors, including those in which compulsory procedures may be applied.

The issues of making a decision on organization of a confrontation with the participation of a minor victim and a witness, as well as techniques for creating the safest conditions for participants, are considered. Taking into account the domestic practice of organizing confrontations and international experience in protecting the rights of minors during confrontations, it is proposed to use technical means of fixation and remote methods of investigative actions. The conclusion is formulated about the need for a systematic approach to changes in the criminal procedure law in terms of regulating the rights of minor victims and witnesses.

Keywords: minor, victim, witness, legal representative, protection of rights, security of participants, confrontation, video recording, remote methods of investigative actions

 

CIVIL PROCEDURE

Onosov Yu. V., Borodailyuk M. A.

Judicial Discretion in Evaluation of Evidence in Civil Proceedings

The authors analyze in detail the legal nature of the term «judicial discretion», it’s correlation with related categories and formulates the criteria for its distinction. The essence of judicial discretion and judge’s inner convictions when the court evaluates evidence in civil cases is also studied. Each civil case is individual and it is impossible to provide all the details in legal norms. At this stage the limited freedom of the court opens up in the formation of internal attitude in a specific legal case, and, in particular, for the judicial discretion.

The study of judicial practice shows that the ambiguity in determining the reasons for which the court made a particular decision entails an appeal against judicial acts, and, subsequently, their cancellation. This negatively affects statistics and diminishes the authority of the judicial system. The authors conclude that there is a need for more effective legislative regulation of the requirements for a court decision and for a more detailed study of the criteria to which the motivation part of a judicial act must comply.

Keywords: discretion, judicial discretion, inner conviction of a judge, evidence, civil procedure, civil case

 

LABOR LAW

Balitskiy K. S.

Training and Additional Professional Education of Employees: Defects in Legal Regulation and Judicial Practice

It is no coincidence that relations on training and additional vocational education are included in the subject of labor law, since their regulation allows ensuring a balance of the needs and interests of both parties to the labor relationship. This article is devoted to the problematic issues of this institution of labor law.

The author highlighted a number of defects in labor legislation connected with 1) granting the right to conclude an apprenticeship agreement only to such employers as legal entities, 2) the amount of the scholarship that is paid to students during the period of study at the expense of the employer, 3) the subject of the apprenticeship agreement, the approach to the definition of which was changed by the Supreme Court of the Russian Federation under conditions of invariability in this part of Art. 199 of the Labor Code of the Russian Federation, 4) the possibility of including in the apprenticeship agreement a condition on the full reimbursement by the employee of the costs incurred for training, regardless of how long he worked after its completion, 5) the content of the category «training costs». Ways to overcome these defects are proposed.

Keywords: labor law, employee training, employment contract, apprenticeship contract, court practice, labor law defects

 

INFORMATION LAW

Dzhenakova E. V.

On the Issue of Classification of Subjects of Information Dissemination

The paper identifies the difficulties of systematization in information law, in particular the problems of classification of the subjects of information relations. For instance, there is no clear distinction between the concepts of «subject of information law» and «subject of information legal relation». Difficulties also arise in the development of a single classification criterion.

special attention is paid to problems of classification of subjects of information dissemination relationship. Determining subject composition is difficult due to structural complexity of legal relation under study. The author suggests possible ways to resolve them, in particular, to consider the object of information dissemination as a criterion of classification. The author proposes to take into account two criteria when building a system of subjects of information legal relations: functional-activity and objective. It seems that the classification of subjects built according to the specified criteria will ensure consistency and relevance of legal norms. And this, in turn, guaranties efficiency of legal regulation.

Keywords: subjects of information legal relationship, subjects of information dissemination, problems of classification of subjects of information dissemination, object of information dissemination, criterion of systematization

 

BUSINESS LAW

Bazhina M. A.

The Quality of Transport Legislation of the Russian Federation

The legislation quality is the business card of each state. The higher level of legislation is, the stronger is the basis for the functioning of all economy braches. The necessity to cover the issues of transport legislation quality is connected with the fact that transportation legislation is in the hinge period. Using the comparative historical method, the author analyzes the transportation legislation of the previous periods (of the Russian Empire and Soviet Union) that is inherited by the Russian legislator, and concludes that it does not correspond to requirements of modern economy and political situation. The number of acts devoted to transportation issues has sufficiently increased, this raises a question of the quality of transport legislation. The author gives certain examples that illustrate its decrease.

The article describes the criteria that determine the quality of transport legislation: systematic approach to the development of laws; their compliance with modern requirements and trends in society; compliance of legislation with legal and technical requirements.

Keywords: transport activity, quality of legislation, systematic character of legislation

 

TAX LAW

Zimul’kin M. I.

Procedural Guarantees of Taxpayers in International Mutual Agreement Procedures

Effective mechanisms to eliminate multiple taxation contribute to economic development, including through the creation of a favorable investment climate, for each of the contracting states. One of such mechanisms is considered to be the mutual agreement procedure between the fiscal authorities of the contracting states. The legal basis for these procedures is provided by the agreements for the avoidance of double taxation, the Tax Code of the Russian Federation, decrees of the Government of the Russian Federation, as well as the other acts of executive authorities.

The author considers the issues of regulation of mutual agreement procedures, including problems of determining the order and timing of consideration of a taxpayer’s application for a mutual agreement procedure. The importance of procedural guarantees of taxpayers established in the legislation of the Russian Federation on taxes and fees is emphasized. Diminishing the procedural rights of taxpayers leads to a violation of the balance of private and public interests. The author also defines a list of the main procedural guarantees of taxpayers during the mutual agreement procedure, including the right to file an application for a mutual agreement procedure, the right to reply on the results of the consideration of the application and the right to openness of information (transparency).

Keywords: tax, tax procedures, tax rules, tax procedural rules, tax disputes, mutual agreement procedures, double taxation

 

LEGAL EDUCATION

Sel’kova A. A.

Review of the Methods Used to Form the Competencies of Future Lawyers

The author analyzes traditional and innovative methods of legal education and concludes that it is necessary to use these methods together for a more complete achievement of all the goals of the educational process. The successful use of interactive and classical forms and methods of teaching implies an increase in theoretical and practical skills of students, and allows combining educational and research work. The author emphasizes the value of using interactive forms and teaching methods, with the help of which many educational goals and objectives for the development of the intellectual and creative potential of students can be achieved, which fits into the modern paradigm of the labor market.

Keywords: higher education, legal disciplines, teaching methods, educational process

 

Sokolova L. A.

Translation of Scientific Articles from Russian into English (from the Viewpoint of Erratology)

The author considers the translation of scientific articles on different branches of law from Russian into English from the viewpoint of erratology, i. e. analyzing the most common errors in translation. It is extremely important to remember that you can correctly translate a sentence from the viewpoint of vocabulary and grammar, but native speakers no longer use such constructions and expressions. It is necessary to correctly perceive the linguistic picture of the world in a different, not native, language. That is why the author of the article does not focus on theoretical issues of what is considered an error, but on the basis of her practical activity wants to draw the attention of colleagues to what makes you immediately feel that a text is not an original, but a translated one. Among the most common errors are those related to the inability to correctly choose English equivalents, inattention to typical grammatical constructions or the communicative order of words, etc.

At the end of the article the author gives recommendations to prevent errors to improve the quality of translation of scientific articles from Russian into English.

Keywords: scientific article, translation from Russian into English, erratological aspect, most common errors, erratology in translation