No. 1 (2020): Russian Law: Education, Practice, Research. 2020. № 1

CRIMINAL PROCEDURE AND CRIMINALISTICS

Rudich V.V.

Admission of a Notary to Entrepreneurs in Custody: Problems of Implementation

The relevance of this work is due to innovations in the Russian criminal procedure legislation, according to which the right to see a notary was provided for entrepreneurs in custody. The author has studied the notary’s access to such business entities as individual entrepreneurs in the case of a crime committed by them in connection with their business activities and (or) the management of their property used for business purposes, as well as members of the management bodies of a commercial organization in connection with the exercise of their powers to manage the organization or in the implementation of business activities by a commercial organization.

On the basis of the Russian criminal procedure and notary legislation, the author indicates possible options for applying a preventive measure in the form of detention in respect of persons who have committed crimes in the sphere of business activity; the issue of changing the legislation governing the admission of a notary to persons in custody accused of committing crimes in the sphere of business activity, and the conditions for carrying out notarial actions is considered.

The author analyzes the issue of the need to perform notarial actions in relation to citizens of another category (not entrepreneurs), in respect of which a preventive measure in the form of detention has been chosen. The issues of possible abuse of the right to meet with a notary, carrying out notarial actions and registration of notarial documents are considered.

Keywords: preventive measure, detention, accused, suspect, business activity, meeting with a notary, power of attorney

 

Sergeev A.B., Sergeev K.A.

Criminalistic Characteristics of Persons Who Have Committed Criminal Acts Provided for in Paragraph «D» of Part 3 of Article 110.1 of the Criminal Code of the Russian Federation

It is proved that there is a need to develop a forensic characteristic of a person who performs actions aimed at inducing suicide or facilitating suicide using information and telecommunications networks.

It is indicated that criminally significant information about the identity of the accused contributes to solving multi-level problems of theoretical and legal, forensic, organizational and procedural nature allows the investigator to prevent the promotion of erroneous versions, to refrain from conducting investigative actions and operational search activities that do not ensure the completion of the proceedings in a reasonable time, etc.

The example given in the article contains interesting and criminally significant information about the accused. However, empirical base is not big enough for us to say which of the accused character traits are typical and how frequently they will be observed in those accused of committing similar crimes. At the same time, they form a primary idea of a possible set of typological features. The study of subsequent examples from judicial practice and the results obtained can be compared with existing ones. With constant analytical work, the task of forming a typical portrait of a person who commits criminal acts aimed at inducing suicide using information and telecommunications networks (including the Internet) will be solved.

Keywords: forensic characteristics, information and telecommunication networks, incitement to suicide

 

Shishkina E.V.

Conditions for Effective Investigative Actions

The problems of the effectiveness of investigative actions are an integral part of the problems of the quality of investigation, which determines the relevance of their research. The article discusses various points of view on the concept of investigative actions effectiveness, and based on the analysis, the conclusion is formulated that a special approach is necessary to assess the results of activities in a specific area of crime investigation.

The main conditions for improving the effectiveness of investigative actions are formulated. The first condition is setting the correct, tactically justified goal of the investigative action, which can include intermediate goals. The second condition is the correct choice of investigative action, taking into account its essence and purpose. The significance of the essence of an investigative action for practical activities is justified. The author’s position is based on distinguishing the investigative experiment and checking the evidence on the spot. The third condition concerns the rules for selecting the most effective investigative action among the possible ones, taking into account its tactical capabilities in the current investigative situation.

Effectiveness of investigative actions also depends on the correct choice of their sequence in the framework of tactical operations and at various stages of the investigation, as well as tactically justified decisions about the tactics used in their conduct.

Keywords: investigative action, effectiveness, intermediate goals, specific essence, tactically justified choice, tactical drawing

 

Sorokotyagin I.N., Belyaeva E.R.

Features of Interaction of Experts at the Initial Stage of the Investigation of the Falsification of Results of Operative-Search Activities

Features of the application of expert techniques in the investigation of falsification of the results of operational-search activities are disclosed (Part 4 of Article 303 of the Criminal Code of the Russian Federation). the main reasons for the poor-quality investigation of such crimes include shortcomings in the interaction between investigators and expert institutions, the inefficient use of operational information in order to find possible sources of evidence.

The authors analyze the activities of the Investigative Committee of the Russian Federation in this area. At the time of its formation, the Committee had no departmental system of expert support. Subsequently, expert units were created in it, where the most popular high-tech expert studies are carried out, while in other departments their application caused problems. In particular, psychophysiological, computer-technical, and forensic medical examinations are conducted at a high level. In support of the article, examples from practice are given.

The main innovative directions of scientific expert research in the investigation of crimes under Part 4 of Article 303 of the Criminal Code are indicated. Among them, the development of domestic instruments and technologies for the study of human DNA; equipment for finding bodies under the surface of the earth and in the aquatic environment; methods of searching for people in various landscape, temperature and weather conditions, etc. In addition, special courses and training events are organized for experts of the Investigative Committee of the Russian Federation, and the country’s leading specialized universities participate in this. The legal regulation of the organization and conducting of forensic examinations in the Committee is being improved.

Keywords: development of innovative genogeographic and ethnogeographic examinations, genomic technologies for personal identification, hypnoreproduction examinations, system of psychological zombies, falsification of the results of operational-search activities

 

CRIMINAL LAW AND CRIMINOLOGY

Kokotova D.A.

Criminological Expertise of Paragraphs 19, 34, 38, 51.1 of the Regulations «On Awarding Scientific Degrees»

This article is devoted to the consequences of violation of paragraph 14 of the Regulations «On Awarding Scientific Degrees» and submission of false information about publications as a factor of delinquency. These consequences are fighting against violations of requirements of citations, references and publication of results of dissertations. However, these norms now are not actively executed. The reason of such situation may be partly connected with characteristics of the Regulations.

The criminological expertise is based on the following principles: analysis and conclusions depend on the choice of the criminological theory (it is C. Beccaria’s ideas for such expertise); it is possible to use different criteria; it is possible to analyze any items (not only rules of law), any violations (not only penal acts).

The results of the expertise:

1) there is a contradiction between analyzed items and paragraph 20 of the Regulations;

2) legal criteria of differentiation (is it the same dissertation, which cannot be defended repeatedly, or a new dissertation of the same applicant, which can be submitted to a dissertation board?) and rules on the procedure of execution of deprivation of right to defend a dissertation repeatedly and the persons responsible for such execution are not determined;

3) these contradictions and gaps in the Regulations can cause its violation or incorrect execution and can reduce effectiveness of such a punishment as deprivation of right to defend a dissertation repeatedly.

Keywords: deprivation of right to defend a dissertation repeatedly, new dissertation, effectiveness of punishment, criminological expertise, C. Beccaria

 

Hlus A.M.

Criminal-Legal and Criminalistic Bases of Formation of the Methodology for Investigation of Embezzlement by Abuse of Authority

The article discusses a special method of investigating embezzlement by abuse of authority. Its elaboration on the basis of the forensic characteristics does not contribute to the disclosure of the material elements of the structure of embezzlement in the process of its investigation. Currently, the criminalistic characteristics of crimes are dominated by criminal law and criminological knowledge, which is not correct from the perspective of reflecting the realities of a criminal act.

According to the author, the basis of the criminalistic characteristics of embezzlement through abuse of authority, should be knowledge of the general elements of their material structure. In the future, information about these elements should be one of the main parts of the criminalistic characteristics of a crime. Knowledge of the elements of the material structure of the crime, combined with their criminalistic characteristics, provide a solid basis for constructing special methods for investigating embezzlement through abuse of authority. In investigating crimes, knowledge of the abovementioned elements allows us to understand the structure of the investigated act, to reveal the presence (absence) of significant information for each of its elements. Correlation of the available information about these elements with their description in the criminalistic characteristics of the crime helps to choose the direction of the investigation, put forward the appropriate versions and determine the set of tactical tools necessary to verify them.

Keywords: criminal law, embezzlement, abuse of authority, official, forensic science, crime investigation methodology, criminalistic characteristics of crimes, material structure of crimes

 

CONSTITUTIONAL LAW

Kravtsova E.A.

On the Need to Form Constitutional (Statutory) Courts
in the Subjects of the Russian Federation

The mandatory existence of independent legislative, executive and judicial branches of government at the level of the Russian Federation constituent entities is defined by the concept of federal relations, which are organically derived from the text of the Constitution of the Russian Federation. However, the analysis of the system of state authorities that has actually developed in the subjects shows that it is possible to speak of a really functioning independent triad of authorities only in those subjects of the Russian Federation in which the constitutional (statutory) courts are established and functioning. Currently, such courts operate only in 16 regions of the Russian Federation, and there is a tendency to further reduce their quantity. The purpose of this article is to analyze the current situation in the sphere of establishment and functioning of the independent judiciary, at the level of constituent entities of the Russian Federation, development of proposals to bring the situation in accordance with the regulations of the Constitution.

 Having analyzed current Russian and foreign legislation, the author proposes to provide for the mandatory establishment of constitutional justice bodies in the subjects of the Russian Federation, giving the subjects of the Russian Federation the right to organize the activities of these courts not on a permanent basis, but by convening judges as necessary to consider specific cases.

Keywords: judicial system, federalism, state authorities of the subjects of the Russian Federation, subjects of the Federation, constitutional courts of the subjects of the Russian Federation

 

Sten’kin D.S.

Constitutional Prohibition as a Way of Addressing the Issue of the Homeless in Hungary

The Basic Law of Hungary was adopted in 2011, and since then seven amendments have been introduced to it. A number of amendments caused criticism in Hungarian society. The author analyzes the prohibition of being in a public place for the purpose of living, and highlights four reasons for such a strict regulation of housing issues. The first one is related to the migration crisis in Europe and the dominance of refugees in Hungary; the second one is connected with a referendum on migration quotas in 2016; the third cause is a lot of people in difficulty due to the economic crisis in the country; the fourth one is related to numerous protests against unpopular government reforms.

In part 3 of Article XXII of the Basic Law, a direct ban on living in public places was enshrined. According to Hungarian human rights organizations, it is a serious violation of human dignity and freedom of movement. The Hungarian Constitutional Court, by contrast, argues that homelessness is not part of the right to human dignity. The author of the article, in turn, points out that the Hungarian Basic Law obliges the state or local government to provide decent housing to the people living in Hungary. The adoption of the new rules clearly indicates the contradictory nature of the Constitution, as well as the fact that the state intends to solve opportunistic tasks by introducing such prohibitions.

Keywords: the Basic Law of Hungary, the Constitution of Hungary, Hungary, constitutional development of Hungary, constitutionalism, constitutional changes, the State Assembly, the homeless

 

Nechkin A.V.

Political Opportunism of Constitutional Reforms in Russia and Other CIS Countries: Past, Present and Future

The constitutions of most CIS countries have been being reformed for quite a long time and sometimes with unclear goals and mutually exclusive results. In this paper, a politically opportunistic constitutional reform is defined, its characteristics are highlighted. General scientific (comparison, analysis, synthesis) and specific scientific (comparative legal and special legal) methods allowed to give examples of such reforms undertaken or preparing to be undertaken in the CIS countries. Special attention is paid to the upcoming constitutional reform in Russia, which also has characteristics of a politically opportunistic one.

 The author notes that in a number of CIS countries there is an obvious pattern between the privileged constitutional and legal status of the head of state (president) and politically opportunistic constitutional reforms. The first one is not possible without the second, and periodically requires adjustment due to such constitutional reforms, increasing their quantity. The author also notes that in the future, examples of politically opportunistic reforms in the CIS countries will inevitably appear.

Keywords: constitutional reform, constitutional reform in Russia, the Commonwealth of Independent States, CIS countries, political conjuncture, constitution

 

Mochalov A. N.

A Soviet Anomaly or the European Pattern? Some Considerations on the Nature of Ethnic (Multi-National) Federalism

The author argues the view on ethnic (or multi-national) federalism as on the logical aftermath of the European system of the world order having state-nations as its basic elements. The explanation of ethnic federalism (including modern Russian federalism) as a «Soviet heritage» and a legal anomaly coming from the Soviet theory of ethnicity and Stalin’s approach to resolving of a «national question» is criticized. Having analyzed the nature of collective legal status of ethnic groups and «internal» (or stateless) nations the author comes to a conclusion that the reasons for recognition such a status should be searched not in the Soviet theory of ethnicity but in the European approach to the national statehood and nation-states.

In the article, the author also considers the correlation between ethnicity and territory. Even if such a correlation is conditional, as many modern social scientists think, it cannot be ignored in constitutional territorial design of modern states containing internal nations. Using the methodological approach of the constructivist paradigm of understanding ethnicity and nationalism, the author at the same time challenges the Russian constructivists’ approach to ethnic federalism as an «essentialized» ethnicity.

Keywords: ethnic federalism, multi-national federalism, national statehood, nation-state, ethnicity, nationalism, territorial autonomy

 

CIVIL LAW

Tikhonov A. N.

Cases of Seizure of a Land for State or Municipal Needs

On the basis of analysis of regulations and law enforcement practice, the author attempts to reveal the content of the concept of «state or municipal needs» and to determine in which cases it is possible to withdraw land for state or municipal needs.

The article deals with such a basis for the seizure of land and objects of real estate located on it for municipal needs as «complex development of the territory». It is concluded that it does not comply with the principles of seizure, because the latter can be carried out only on the basis of the agreement concluded with the owner. It is noted that there are no rules protecting the rights of use if they are significantly violated as a result of the implementation of a generally useful case, in particular, when placing linear objects, which makes the use of the neighboring land plot significantly limited. It seems reasonable to use the mechanism of seizure of land for state or municipal needs in the abovementioned cases.

As a result of the study, it was possible to determine the general conditions under which it is possible to withdraw land for state and municipal needs. So the land plot can be withdrawn from the owner for the state or municipal needs only in exceptional cases and on condition of preliminary and equivalent compensation of its cost.

Keywords: land property, seizure of a land for state or municipal needs, state and municipal needs, list of state and municipal needs, complex development of the territory

 

Zakharov D. E.

Guilt as a Condition of Prosecution for Breach of Contract under German Civil Law

The Civil Code of Germany is one of the oldest legal acts of our time, a prototype and a source of civil law for many national legal systems of the Romano-Germanic legal family. Currently, the integration of civil law in the countries of the Romano-Germanic legal system causes a significant impact of German civil law on the development of private law in the countries of continental law. In the paper, an attempt is made to understand the theoretical and practical aspects of guilt as a condition of liability for breach of an obligation under German law.

The author points out that civil liability for breach of contract in Germany is based on the principle of the guilt of the offender and on the so-called principle of liability for the guarantee. The use of the latter leads to a toughening of responsibility, since the person involved in it is responsible regardless of his guilt. If there are no signs of guilt in the actions of a person, he cannot be held accountable, and then the debtor is liable if there is intent or negligence. Negligent are the actions of a person who does not show the diligence and discretion required of him by the law.

It is noted that German civil law provides for the possibility of fulfillment of an obligation not by the debtor himself, but by other persons. At the same time, the debtor’s liability for the guilt of his legal representative and the persons whom he engages in the performance of the obligation occurs in the same amount as for his own guilt. The author also underlines, that in Germany, in assessing guilt, the emphasis is placed on violation of the obligation, and in Russia – on the attitude of a person to his illegal behavior.

Keywords: liability, breach of obligation, guilt, German law, contract

 

CIVIL PROCEDURE

Ergashev E. R., Podzharov D. A.

Some Problems of Participation of the Prosecutor in Civil Procedure

The article deals with some problems of the current civil procedural legislation regulating the status of the prosecutor, the prosecutor’s initiation of consideration of civil cases by the courts, and the prosecutor’s conclusion in a civil case. The fundamental nature of the status problem is explained by its close relationship with all the forms and stages of participation of the prosecutor in the civil procedure. According to the authors, the use of reference norms to indicate the position of the prosecutor does not contribute to the formation of a unified approach in understanding its role and place in the system of subjects of civil procedural relations.

A critical analysis of the main points of view on this issue is given and the right way to solve it is proposed. The problems of the initiative form of participation of the prosecutor in the civil procedure are connected with the imperfection of the Civil Procedure Code, which contains evaluative legislative constructs that give the courts discretionary powers to determine the presence or absence of grounds for the prosecutor to file a claim. In the comparative legal aspect, the requirements to the form, structure and content of the prosecutor’s opinion in Russia and the Republic of Kazakhstan are investigated. In the Russian legislation, there are gaps in the regulation of the prosecutor’s opinion, which creates difficulties in preparing for court hearings and speaking during the consideration of a civil case on the merits.

Keywords: status of the prosecutor in civil proceedings, state of health, age, other valid reasons, indefinite circle of persons, conclusion of the prosecutor

 

LEGAL EDUCATION

Kostogryzov P. I.

Why do Lawyers Need Legal Anthropology?

The article deals with some problems of content of higher education programs in law. The aim of the work is to find an adequate response to the new challenges that legal science and practice face. These challenges are related to scientific and technological progress and globalization. They are inherently values-related and it is impossible to give a response to them, remaining in the subject field and methodological framework of «pure» law science. A transdisciplinary synthesis of social sciences and humanities is needed. Nowadays a lawyer must be professionally socialized sufficiently to effectively apply the results of this synthesis in his work. To do this, it is necessary to anthropologize the professional legal component of education, which is possible by introducing the discipline «Legal anthropology» into the curricula of higher legal education. This will allow, without making significant changes in the content of traditional legal courses (which are already very information-rich and extremely «compacted»), to set a general anthropological perspective for the professional legal awareness of future lawyers and to form their anthropological competence at the level corresponding to present-day conditions.

For the implementation of this proposal, it is suggested to begin teaching the discipline «Legal anthropology» in the master level and senior courses of the five-year specialist program in jurisprudence; to introduce the course «Anthropology of security» in the five-year program of the «Legal support of national security» speciality; to supplement the PhD program in lawwith the course of legal anthropology for those postgraduate students who had not attended it during their master’s or specialist’s studies; to teach graduate students in the field of «State and municipal administration» at least one of the disciplines «Legal anthropology» or «Political anthropology», and the best option would be a combined course of political and legal anthropology; to introduce legal anthropology in the graduate program in the field of «Anthropology and ethnology», where it has not been done yet.

Keywords: legal education, master’s degree, specialization, legal anthropology

 

REVIEW

Bendyurina S. V., Gimgina M. E.

V Ural Forum of Constitutionalists

Scientists, practitioners, and representatives of state and municipal authorities discussed current issues of local self-government and municipal control, the state system and implementation of the principles of building a federal state, the electoral process, the participation of society and citizens in the management of state affairs and the constitutionalization of these phenomena. Special attention was paid to the digitalization of constitutional law and the methodology for finding a balance of interests in administration of constitutional justice.

Keywords: constitutionalism, constitution, realization of human and civil rights and freedoms and its limits, federalism, parliamentarism, democracy, constitutional justice, electoral technologies in the context of digitalization, electoral process, municipal control, problems of legal regulation, law enforcement