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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 08/2017
Contents of Issue № 08/2017
Human and state
Antsiferov N.V. - Constitutional entrenchment of individual duties in post-Soviet states: comparative legal analysis pp. 1-13

DOI:
10.25136/2409-7136.2017.8.23450

Abstract: The article is dedicated to the aspects of constitutional entrenchment of the duties of individuals as an important element of the constitutional status of a personality and a citizen in the post-Soviet states. The article studies the aspects of legal entrenchment of such duties in the structure of constitutions, the catalogue of duties is being analyzed together with constitutional approaches to the determination of the circle of their subjects. The article reveals and considers the widely spread duties of individuals in terms of constitutional entrenchment of the duties of individuals, as well as rarer duties, typical for a limited range of constitutions. Attention is paid to general legal duty related to compliance to the constitution and laws; duties not to breach (respect) rights and freedoms of other personalities; duties aimed at consolidation (by the state) of resources (as related to payment of taxes and fees, other mandatory payments, protection of the home country and military duty); duties aimed at protection of the public interest (environmental protection, protection of historical and cultural heritage, obtainment of education, inadmissibility of the use of rights and freedoms contradicting public interests protected by the law; respect to national traditions, respect towards the state symbols, dedication to the Motherland); social duties (duties of parents and duties of children); duties of owners. The article considers the specific features of actual constitutional duties, their similarities and differences. Based on the analysis conducted, the author concludes about the presence of common approaches of the constitutional lawmakers to the entrenchment of constitutional duties of individuals. However, the respective entrenchment (regulation) is not identical both from the point of view of its contents and scope. Such differences provide for a significant potential of their implementation within the frames of actual legal relations with the participation of the individual and the citizen.
Transformation of legal systems
Neznamov A., Naumov V. - On the regulation of robotics in Russia and in the world pp. 14-25

DOI:
10.25136/2409-7136.2017.8.23292

Abstract: The subject and the purpose of the article is the description of general tendencies of regulation of robotics in the world. The authors study the examples of the European Union, China, the USA, South Korea and Japan. The authors analyze the level of development of Russian legislation on robotics. The study characterizes the current state of robotics in Russia, analyzes legislative initiative about the regulation of activity of smart robots (robots-agents). The authors evaluate and substantiate the need for legal regulation of robotics in Russia and analyze the approaches to realization of the necessary regulatory reform. The research methodology includes the method of comparative jurisprudence and comparative analysis of legal systems of different countries for the purpose of detection of common tendencies of regulation of robotics in the world using the examples of the EU, China, the USA, South Korea and Japan. The authors substantiate the need for the earliest solution of the problem of legal regulation of robotics in Russia. The authors formulate the strategy of development of legislation in this sphere. 
JUDICIAL POWER
Panokin A.M. - Fundamental Principles of Appeal in Criminal Proceedings pp. 26-45

DOI:
10.25136/2409-7136.2017.8.23816

Abstract: In the article, the author analyses the notion, definition and the classification of the fundamental principles of appeal proceedings. The author proposes a retrospective analysis of pre-revolutionary, Soviet and modern Russian legal doctrines, which define in different ways the fundamental principles of the control and review stages of criminal procedure. The author reveals the correlation between the fundamental principles of appeal proceedings and the principles of criminal procedure and the context of general court proceedings.The author considers the peculiarities of implementation of a theoretical construct of the fundamental principles of revision of decisions of court, which haven’t yet become effective in law. This construct had been formalized in Russian legal doctrine, legislation and law enforcement practice in different periods of development of Russian criminal procedure. The importance of the legal standing of the European Court of Human Rights and the Constitutional Court of the Russian Federation, as well as of the interpretation of the Plenum of the Supreme Court of the Russian Federation and of the court rulings that give substance to the fundamental principles of the appeal procedure is emphasized. The author analyzes particular fundamental principles of the appeal proceedings in criminal procedure. The subject of the article determines the application of a number of general scientific methods (system analysis, description of empiric material, comparison and generalization), and special methods (historic and legal analysis, generalization of the law enforcement practice and technical and legal analysis). Study of the essence of the fundamental principles of appeal proceedings allowes the author to conclude that appeal is the main method of revision of decisions of court. In this regard, the author proposes certain areas of reforming the revision of decisions of court, which haven't yet become ef fective in law, consisting in a more consistent implementation of fundamental principles of appeal proceedings.
Nasonov S. . - Historical typologization of criminal proceedings in jury trials: concept, approaches, significance pp. 46-57

DOI:
10.25136/2409-7136.2017.8.23701

Abstract: The article is devoted to the historical typologization of criminal proceedings in jury trials. The author notes that the essence of the jury trial requires its realization in the legislative regulation and judicial practice of the concrete historical models of trial by jury. However, each specific model of proceeding in a jury trial is formed and functions in the context of the evolution of a certain legal system, as a result of which it inevitably comes under the influence of a group of factors that affects the specificity of realization of these features. The identical nature of a number of such factors leads to the emergence of models of proceedings in the jury trial which are similar in the specificity of their legal constructions.The article critically examines the approaches to the historical typologization of proceedings in jury trials in pre-revolutionary and modern procedural literature. In the author's opinion, the complex basis of the typology of historical forms of proceedings in the jury trial is determined by a certain type of criminal process, its historical form, and also the ideology (direction) of the transformation of the theoretical (ideal) model of such proceeding.The totality of the concrete historical features of proceeding in the jury trial constitutes a typical historical (morphological) model of such proceeding, and its implementation in the legislation of the particular state (in the particular historical period) is a particular historical form (the legislative form) of proceeding in the jury trial.The author notes that there exist three typical historical (morphological) models of proceedings in jury trial: Anglo-American, Continental and Combined (mixed).The author concludes that the study of historical models of proceedings in jury trial is significant for finding the ways to improve this form of legal proceedings in modern Russia.
Shkurova P.D. - Electronic document as an independent means of proving in civil and administrative proceedings pp. 58-68

DOI:
10.25136/2409-7136.2017.8.23766

Abstract: The research subject is the provisions of the current legislation on electronic documents. The research object is particular problems connected with the procedure of obtaining and examining an electronic document in the context of its specificity. The author studies the aspects of the topic connected with the provision with the information contained on the hard disk of the computer, the study of the hard disk, and the recognition of correspondence via WhatsApp as inadmissible evidence. Particular attention is paid to the exclusion of an electronic document from the existing list of written evidence in civil and administrative proceedings. The author substantiates the consolidation of an open, non-exhaustive list of means of proving in civil and administrative proceedings. The author notes that in some normative legal acts the legislator somehow endues electronic documents with lower evidentiary strength compared with written evidence.The methodological basis of the study is represented by the following methods: the dialectical method of scientific cognition, the method of formal logic, the formal-legal method, the methods of analysis and synthesis, comparative legal, system and historical methods.The author defines the status of an electronic document in civil and administrative proceedings, formulates the proposals for formalization of an open list of evidence in article 59 of the Administrative Procedure Rules and at adoption of Chapter 6 of the Unified Сode of civil procedure. A special contribution of the author to the research of the topic is substantiation of exclusion of an electronic document from the list of written evidence in the Civil Procedure Code, the Arbitration Procedure Code and the Administrative Procedure Rules. Provisions of part 3 article 75 of the Arbitration Procedure Code and parts 1.1 article 70 of Administrative Procedure Rules should be taken into account when adopting the Unified Civil Procedure Code and amending the Administrative Procedure Rules. Special reasons and procedure of adoption of electronic documents as evidence should result in the special procedure of their examination, different from the procedure of examination of written evidences. 
Law and order
Kulikov E.A. - Criminal responsibility for fraud and smuggling from the position of correlation of general and special rule and the principle of legal certainty pp. 69-79

DOI:
10.25136/2409-7136.2017.8.23024

Abstract: The research subject is the current provisions of criminal legislation about responsibility for fraud and smuggling and scientific publications about this problem. The author considers these provisions from the position of competition between general and special rule and from the position of the principle of legal certainty. The author gives special attention to the problem of differentiation between articles 159.6 and 159 of the Criminal Code of the Russian Federation, describing various ways of committing fraud as the criteria of differentiation of its forms. Compositions of smuggling are considered from the position of legal certainty. The author analyzes clarifications of the Constitutional and the Supreme Courts of the Russian Federation. The author uses the comparative method, the formal-logical method and the method of interpretation of law. The author also uses the method of moving from abstract to concrete. The study considers general and special compositions of fraud in the contest of general theory of general and special rule. The author actively uses the decisions of the Constitutional Court, studies their role and importance in the interpretation of criminal legal provisions. The article analyzes particular provisions of the latest decree of the Supreme Court on smuggling. The author attempts to interpret the provisions about responsibility for fraud and smuggling, detect the problems of their use, and offers the ways to solve the detected problems. 
Договор и обязательства
Purge A.R. - Permanent rent in law enforcement pp. 80-88

DOI:
10.25136/2409-7136.2017.8.23709

Abstract: This article studies the practice of application of legal provisions in settlement of disputes arising from a permanent rent contract. The object of this study is the civil and procedural relations connected with the consideration and settlement of disputes arising from a permanent rent contract. The subject of study is the provisions of Russian civil legislation regulating the relations connected with the conclusion, modification and termination of a permanent rent contract, and also law enforcement practice of courts of general jurisdiction consisting in consideration and resolution of disputes connected with a permanent rent contract. The author applies general scientific and special methods of cognition: comparative-legal method is used for the analysis of new and old civil rules. The author also applies the formal-legal method. With regard to the specificity of permanent rent, significant scope of judicial practice in recent years has been connected with entering into and participation in rental commitments of the successors (heirs) of the original recipients. The current judicial practice helps describe the nature and the content of the most common disputes arising from a permanent rent contract, and detect and analyze the problems of law enforcement.
History of state and law
Zherebchikov D.P. - Child abandonment and infanticide in the Russian provinces: historical and legal aspects (case study of the provinces of the Central Black Earth Region of the late 19th – the early 20th century) pp. 89-103

DOI:
10.25136/2409-7136.2017.8.22167

Abstract: When considering the sphere of social deviations, one should give attention to gender factors, i.e. the peculiarities of criminal and deviant behavior of men and women. In the period of modernization of the late 19th – the early 20th century, part of Russian population chose deviant model of behavior, and the crime rate increased. Among typical female crimes of that period the author points out child abandonment and infanticide. The subject of crime was a female person, specifically, a mother, and the object of crime was a child, more often, illegitimate. The author studies the Central Black Earth Region – a rural, patriarchal, peasant, weakly urbanized provincial region of European Russia. The study is interdisciplinary. The methods of social history and legal analysis reveal the problem under study from different scientific positions and as a historical and legal phenomenon as a whole. The scientific novelty consists in the variety of the applied approaches. The author introduces previously unpublished scientific data. The problem under study is topical. The phenomenon of infanticide is still present in Russian society in marginalized segments of the population. Gender factors are still important for the study of modern forms of deviant behavior. 
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