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MAIN PAGE > Journal "Legal Studies" > Contents of Issue є 12/2020
Contents of Issue є 12/2020
Law and order
Kulikov E.A. - Categories of the general, special and individual in criminal law: semantic analysis pp. 1-17

DOI:
10.25136/2409-7136.2020.12.34761

Abstract: The subject of this research is the patterns of interaction between the categories of subjective dialectics and the fundamental concepts of the Russian criminal law. Criminal Law relies on the language structures, thus the article is dedicated to the linguistic aspects of the categories of general, special and individual. Certain attention is given to the analytical philosophy and analytical jurisprudence. The linguistic turn in gnoseology and epistemology of the middle of the XX century pointed out the linguistic aspects of various texts and justified the need for its research, since language and communication comprise the framework of human interaction, as well as determine the content and development of social relations. A substantial number of research, including on criminal law, are dedicated to the language of law and legislative linguistic systematics. The article explores the lexical meaning of the words “general”, “individual”, “particular” "separate", “separate”, “isolate”, “generalize”, and reveals their content from the perspective of etymology, word formation, and synonymy. Emphasis is also placed on the meaning of target terms in the social sphere. The question on the categories of dialectics in criminal law is raised very rarely; the indicated categories of the general, special and individual are virtually unstudied. Through the prism of linguistics, these categories cannot always be distinguished from each other, but rather overlap in content. Therefore, a single semantic characteristic is insufficient for determining their legal aspects, i.e. manifestations in the sphere of jurisprudence; it can only be considered as a stage of research. Semantic aspects of the categories set benchmarks for clarification of their philosophical and special scientific content, interpret possible variants of linguistic usage, and define its boundaries. Language characteristic helps to determine the research scope, in other words, demarcate it from the cognate concepts and terms at the initial stage of research. In the process of interpretation of criminal law, the leading methods are lexical and systemic, which allows most accurately grasp the essence of legal instructions.
Ёкологическое и земельное право
Vinnitskiy A.V., Kruglov V.V., Solovev M.S. - To the question on the priority of the natural form of compensation for damage caused to the environment (on the example of water objects and soils) pp. 18-30

DOI:
10.25136/2409-7136.2020.12.34809

Abstract: The subject of this research is the provisions of current environmental and civil legislation that establish the grounds, procedure and forms of compensation for damage caused to the environment. The article examines, generalizes and critically analyzes the practice of the Constitutional Court of the Russian Federation, Supreme Court of the Russian Federation, and arbitration courts on consideration of disputes related to the compensation for damage caused to the environment. Special attention is given to the decision of the Constitutional Court of the Russian Federation No.12-P of 06.02.2015 and the decree of the Plenum of the Supreme Court of the Russian Federation No.49 of 11.30.2017. The article employs the results of environmental legal and cognate scientific research. The conclusion is substantiated on the priority of the natural forms of compensation for damage caused to the environment; in the instance of full or maximum possible compensation, it requires taking prompt measures for the effective restoration of the damaged environment. The author it is substantiated that the questions of possibility for conducting recovery works, their volume and terms can be submitted to legal examination directly in the context of resolving a dispute on the compensation for damage caused to the environment (regardless of the development of recovery project at the pretrial stage). It is noted that such mechanism of proof gains special relevance in case if the time interval between the date of detection of pollution and prior to submission of a claim is insufficient for the development of recovery project through extrajudicial procedure.
JUDICIAL POWER
Balanovskii V.V. - The role of transcendental reflection in realization of the power of judgment pp. 31-43

DOI:
10.25136/2409-7136.2020.12.34847

Abstract: This article analyzes the peculiarities of functionality of transcendental reflection among judges in the context of realization of the power of judgment. An attempt is made to answer the questions on how the judges exercise their power of judgment in decision-making, problems they are facing and ways for their solution. Attention is focused on the peculiarities of ensuring unity of self-consciousness of the judge in carrying out professional activity, as well as on the flaws of the determining and reflective power of judgment, which serve as the grounds for vacation of decisions of the courts of primary jurisdiction through appellation. The author also reviews the prospects for the implementation of artificial intelligence systems into judicial proceedings in light of the questions raised in the article. This work leans on the results of research conducted in 2019–2020 at the intersection of theoretical philosophy, philosophy and sociology of law, theory of state and law. Within the framework of this study, the question of decision-making by judges is viewed through the prism of philosophical system of I. Kant, namely through his concept of the power of judgment. The research is carried out in three directions: transcendental, formal-legal, and sociological. The results consist in formulation of practical recommendations that would improve the effectiveness of realization of the power of judgment, and thus the overall efficiency of judicial proceedings in Russia.
Law and order
Mordovin P.S. - Definition and classification of crime for calculation of its social consequences (cost) pp. 44-59

DOI:
10.25136/2409-7136.2020.12.34836

Abstract: The scientific community still does not have uniformity with regards to the definition of crime, although this concept is crucial in criminology, without which the existence and development of this science is impossible. Crime is a multifaceted phenomenon; thus, its examination within the framework of a single science does not reflect all of the aspects. The author examines various existing approaches towards the definition of crime; analyzes the concepts of natural criminal and the counter-theories. The question of the immanence of crime is explored. However, it does not seem possible to determine the only reasonable viewpoint and deny the rational kernel of other approaches. The analysis of the existing concepts and approaches towards definition of crime once again demonstrates the controversy of the question. Therefore, the analysis of opinions allows concluding on the need for classification crime, including via specific understanding of this concept. Such classification sufficiently reflects the extent of current public awareness of the criminal law, while retaining semantic load from the perspective of criminology. It also prompts the development of research on the social consequences (cost) of crime, since namely this approach seems logical for calculation of the social consequences (cost) of crime.
Practical law manual
Yarovenko V.V., Ardashev R.G. - Dactylographic and dermatoglyphic characteristic of papillary fingerprint ridge patterns of serial killers who committed acquisitive crime pp. 60-77

DOI:
10.25136/2409-7136.2020.12.34697

Abstract: In order to verify the conclusions made by other scholars that based on the traces of papillary ridges of fingers and hands using dermatoglyphic methods in forensics allow composing portrait of a suspect, the authors of the articled analyzed the dactylographic and dermatoglyphic characteristics contained in the accurate dactylographic profiles of the known serial killers who committed acquisitive crimes. Choice of this motive is explained by the fact that both males and females were driven by it. The subject of this research is the types of papillary fingerprint ridges, dactylographic formulas, pattern of ridges, presence or absence of symmetry of the same type of ridge on the same fingers of both hands, and delta index. Research methodology is based on the analysis of modern scientific provisions of dactyloscopy and dermatoglyphics. Considerable attention is given to the use of private scientific methods of cognition: description, comparison of characteristics of papillary fingerprint ridge patterns of serial killers. The application of these methods of cognition allowed concluding on the absence of undisputed evidence of papillary fingerprint ridge patterns of criminal nature, namely an increase in the number of arched ridges in calculating the frequency of ridges on separate fingers. This article is first to analyze not only the accumulated unique empirical material, but also presents the images for getting a fuller representation on the known serial criminals.
Jurisprudence
Gavrilov V.N., Tereshchenko N.V., Koryukina A.A. - Estoppel and relinquishment of right in the Russian and foreign legal systems pp. 78-83

DOI:
10.25136/2409-7136.2020.12.34806

Abstract: This article analyzes the concepts of such legal principle as estoppel. This principle is relatively new for national legislation, and was borrowed from the countries with Anglo-Saxon legal system. The subject of this research is the correlation of rule of estoppel in the Russian and foreign law, as well as its comparison with the relinquishment of right. Its appearance and normative consolidation in the national legislation is the implementation of an important stage in the concept of development of civil legislation. The article also distinguishes between the two similar concepts of civil law: relinquishment of right and waiver. The authors raise a relevant question on the absence of uniform law enforcement practice thereof. Only few scholars within the Russian science are dealing with this topic. Based on the analysis of the aforementioned legal principles and case law, the authors come to a logical conclusion on the need for a clear delineation between the concepts of estoppel and relinquishment of right for achieving uniformity of judicial practice of the Russian Federation. The purpose the examines in the article legal institutions consists in minimization or complete elimination of negative consequences caused by inconsistent behavior of one party, as well as full protection of rights and interests of other party.
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