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MAIN PAGE > Journal "Legal Studies" > Contents of Issue № 10/2021
Contents of Issue № 10/2021
Questions of current interest
Dementyeva A.A. - Relevant issues of conducting verification of reports on illegal banking operations pp. 1-8

DOI:
10.25136/2409-7136.2021.10.36539

Abstract: This article is dedicated to the issues of conducting audit pursuant to the Article 144 of the Criminal Procedure Code of the Russian Federation on report of crimes established by the Article 172 of the Criminal Code of the Russian Federation. Methodological framework for this research consists of dialectical, logical, and formal-legal methods; the normative framework is comprised of the Constitution of the Russian Federation, criminal and criminal procedure legislation of the Russian Federation, local normative acts that regulate the conduct of audit initiating at the stage of initiating a criminal case. Major attention is turned to the theoretical and applied issues associated with the initiation of criminal cases stipulated by the Article 172 of the Criminal Code of the Russian Federation. Analysis is conducted on the peculiarities of seizure of objects and documents on this category of crime; as well as on the goals, tasks, methods of seizure, and admissible procedural actions. The author examines the questions of admissibility of evidence received at the state of opening a criminal case, their role in subsequent stages of criminal proceedings. Assessment is given to the existing theoretical and practical views on the possibility of instituting a search and seizure prior to opening a criminal case. The author analyzes case law on the topic, and concludes on the need for further amendments. The importance of observing the rights and legitimate interests of individuals and companies in the course of pre-trial proceedings pertinent to the reports of illegal banking operations is substantiated. The author also indicates that arbitrary interference of law enforcement agencies in legitimate business activity is unacceptable.  
Trofimov E.V., Metsker O.G., Paskoshev D.D. - The indicator of humanization of legal regulation: methodological study using big data of judicial practice on the cases of petty theft (the Article 7.27 of the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation) pp. 9-36

DOI:
10.25136/2409-7136.2021.10.36745

Abstract: The subject of this research is the social relations that arise in terms of committing petty theft, as well as research means and methods for assessing optimization of the protective legal regulation. The author substantiates and tests the indicator of humanization of legal regulation, which is identified and used on the big data of judicial acts on administrative and criminal cases of petty theft (the Article 7.27 of the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation). The research is based on the original interdisciplinary methodology, which includes indicator approach and a set of legal and computer aided techniques (dogmatic, systemic analysis, expert assessment, data mining, correlation analysis, cluster analysis, classification, regression, etc.). The author substantiates the need to view humanization of protective legal regulation in the context of balanced interests of all parties involved in the legal conflict, namely: the state (society) interested in the effective preventive function of protective legal regulation; the victim interested in compensation for the caused harm; the wrongdoer interested in imposition of fair punishment adequate in its severity to facts in the case. These interests were compared to the empirical data and knowledge extracted from the vast arrays of judicial acts, as well as the corresponding methods of research. The use of humanization indicator for big data in cases of petty theft demonstrates that administrative responsibility in general is more humane than criminal responsibility (by three out of four indicators); there is disproportionality of repression in criminal cases; the level of humanism to the victim in cases of administrative offences is extremely low; individualization of criminal penalty is lower than of administrative penalty, despite the more complicated, time and cost consuming form of criminal proceedings.
Judicial system: decision-making practices
Topilina T. - Provision of the access to justice for consideration of criminal procedure dispute in the court of cassation pp. 37-48

DOI:
10.25136/2409-7136.2021.10.36737

Abstract: This article analyzes the problems of exercising the right of access to justice for consideration of criminal procedure dispute in the court of cassation. The author examines the legislation of post-Soviet countries in terms of provision the access to justice for consideration of criminal procedure dispute in the court of cassation. The subject of this research is the norms of Russian and foreign legislation that regulate to right of access to justice in criminal proceedings. The object of this research is the legal relations that emerge in implementation of the right of access to justice. It its demonstrated that the restriction on access to justice for consideration of criminal procedure dispute in the court of cassation instance is the time constraint for filing cassation appeal for the convict; and for consideration of interlocutory court decisions – the procedure for assessing cassation appeal without holding a court hearing. The conclusion is substantiated on the need to waive the time constraint for filing cassation appeal for the convict against final court decisions that have entered into force, and for consideration of interim court decisions, the procedure for assessing cassation appeal against the interlocutory court decision should be eliminated without holding a court hearing.
Law and order
Panteleeva E.V. - The concept of innocence in criminal procedure pp. 49-58

DOI:
10.25136/2409-7136.2021.10.36769

Abstract: The concept of “innocence” is an important category of criminal proceedings; alongside the concept of “guilt”, it is the central question resolved in the course of proceedings in criminal cases. However, this term remains poorly studied in theory and legislation. The article examines the instances, in which the concept of “innocence” is used in the text of the current criminal procedure law. Analysis of the norms of the Code of Criminal Procedure of the Russian Federation that establish the circumstance in proof, regulate the questions of rendering verdict by jurors and court sentence, as well as prescriptions of the Criminal Code of the Russian Federation, reveals a number of issues related to the normative theory of innocence. The comparative study conducted on the Articles 73, 299, 339, 302 of the Code of Criminal Procedure of the Russian Federation allows detecting contradictions in the scope of the concepts of guilt and innocence used therein. The author distinguishes between the factual and legal understanding of innocence, as well as substantiates the need for the existence of its specific type – presuming innocence. The arguments are advanced for the possibility of declaring the defendant not guilty based on the acquittal of the jury. For enhancing legal certainty, the author offers the original concept of innocence. The conclusion is made that the issues associated with the normative theory of innocence cause difficulties in law enforcement, and their resolution may affect the accuracy of establishing circumstances in proof, as well as the final court decision.
Human and state
Proniakina S. - Denaturalization as a special ground for termination of legal ties with the state pp. 59-73

DOI:
10.25136/2409-7136.2021.10.36630

Abstract: The legal grounds for acquisition and revocation of citizenship by persons born and residing on the territory of different states may differ significantly due to historical, political, economic, and other reasons. This article provides a comprehensive analysis of the grounds for revocation of citizenship – denaturalization. The author establishes the factors and circumstances that contribute to termination of the political0legal ties of an individual with the state upon the initiative of the state. The article explores the international legal acts, as well as conducts a comparative analysis of the legislation of different countries on the issues of denaturalization. The author reviews the conditions and restrictions for implementation of the procedure for revocation of citizenship by the state, as well as correlation of such grounds for termination of citizenship as revocation of citizenship and reversal of decision on naturalization. The scientific novelty lies in the conclusion that revocation of citizenship is not prohibited by the international legal acts if there are legal grounds established by the domestic legislation of the country. Such grounds may include unlawful actions of a citizen against public security and national interests, as well as other actions that undermine the fundamentals of the constitutional system. The author offers the open legislative consolidation of the legal institution of denaturalization for the possibility of revocation of citizenship of an individual upon the initiative of the state.
Sidneva A.M. - The specificity of legal regime for implementation of business activity in the territories of advanced socioeconomic development pp. 74-86

DOI:
10.25136/2409-7136.2021.10.36676

Abstract: The subject of this research is the legal regime for implementation of business activity in the territory of advanced socioeconomic development in the Russian Federation. The object of this research is the social relations that arise between the actors in the course of conducting business activity in the territory of advanced socioeconomic development. The article outlines the essential characteristics of the definition of the territory of advanced socioeconomic development based on the available research on the topic and current legislation of the Russian Federation. The author also explores the constituent composition of the territory of advanced socioeconomic development and debating points related to implementation of their rights and responsibilities. The scientific novelty lies in determination of the new theoretical positions towards the fundamentals of legal regulation of business activity in the territory of advanced socioeconomic development, and formulation of recommendations for improving the statutory support of such relations. Having analyzes the legal regulation of business activity conducted in the territory of advanced socioeconomic development, the author determines the specificity of implementation of such activity, as well as characteristics of the territory of advanced socioeconomic development from cognate categories with similar legal regime. The article considers the constituent composition of the territories of advanced socioeconomic development and peculiarities of implementation of their rights and responsibilities.
State institutions and legal systems
Zadorina M.A. - Municipalities and their types in light of the constitutional reform of the fundamentals of territorial organization of the local self-government pp. 87-101

DOI:
10.25136/2409-7136.2021.10.36475

Abstract: This article is dedicated to the classification of municipalities and clarification of the term “municipality” in the current legislation of the Russian Federation on the local self-government. Special attention is given to the problems and trends of territorial organization of local self-government at the present stage of the constitutional-legal development of the Russian Federation. The subject of this research is the constitutional norms and other normative legal acts that regulate the issues of organization of local self-government in the Russian Federation and its constituent entities, as well as legal provisions of the Constitutional Court of the Russian Federation and scientific publications on the topic. The methodological framework is comprised of the logical, comparative, statistical, specific-sociological, and special-legal (formal-legal, technical-legal, interpretation) methods of cognition. It is established that the territorial organization of local self-government in specific municipalities and regions does not always fully correspond with the federal legislation. The author suggests distinguishing between the municipalities of urban, rural, and mixed types, unitary multitarian, simple and complex, universal and special. The recommendations are formulated for the improvement of legislation in terms of terminological apparatus of the local self-government and legal consolidation of types of municipalities. The conclusion is made that the constitutional reform of the local self-government is a consequence of the current trend of shifting away from the settlement principle of territorial organization of local self-government, as well as from the two-level model of territorial organization of the local self-government.
Transformation of legal systems
Makarov V.O. - Regulatory sandboxes: comparative-legal study on the institution of experimental legal regimes in the Russian Federation and regulatory laboratories in Georgia pp. 102-113

DOI:
10.25136/2409-7136.2021.10.36674

Abstract: This article carries out a comparative-legal study of the institution of regulatory sandboxes in the Russian Federation and Georgia. Based on the information acquired upon the request of the National Bank of Georgia, the author examines the normative regulation of regulatory laboratories of Georgia – Decree of the President of the National Bank of Georgia No. 110/04 of May 25, 2020 “On the Approval of Establishment of Regulatory Laboratories by the National Bank of Georgia and their Use", as well as its comparison with the federal law and normative acts that regulate experimental legal regimes in Russia. The application of comparative-legal methods allows determining the similarities and differences in legal regulation and practice of implementation of such institutions in the Russian Federation and Georgia. Description is given to the terminological differences in legislation on legal experiments of the two countries, as well as the differences in the model of legal regulation of the institution of experimental legal regimes: comprehensive regulation by means of the federal law and normative acts in the Russian Federation, and overall regulation solely by the Decree of the President of the National Bank of Georgia. Georgia allows experimental regulation applicable exclusively to financial technologies, while the Russian Federation allows for a broader scope of implementation. This substantiates the differences in the requirements of initiators and authorities that regulate such legal experiments. The conclusion is made on the more successful practice of implementation of legal experiments in the sphere of financial technologies in Georgia, despite the absence of special law or large array of developing legislation.
Семейное право
Parii-Sergeenko E.P. - Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law pp. 114-125

DOI:
10.25136/2409-7136.2021.10.36621

Abstract: This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.
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