DOI: 10.7256/2454-0706.2020.4.32512

Abstract: This article is dedicated to the search of the answer to the question of whether or not an expert witness carries civil legal (property) liability for providing flawed expert opinion that the court refuses to admit as the valid evidence in a case. An attempt is made to answer the question of whether compensation of the expert can be lowered; should the initial expert’s testimony be paid if the court requires second opinion; can the court refuse payment to the expert witness or a conclusion must be made that expert witnesses have immunity from property liability. Based on the results of analysis of arbitration court case law it is determined that in majority of the cases courts conclude that despite an ill-prepared expert testimony, compensation of the expert witness cannot be decreased or unpaid, while independent claim against the expert will not be satisfied. Such approach of the judicial system testifies that expert witnesses have de-facto immunity from civil liability, despite the fact that such immunity is not covered by the legislation. Moreover, there is a principle of general tort, according to which any damages, including those inflicted by an expert witness, are subject to compensation.

DOI: 10.7256/2454-0706.2020.4.32517

Abstract: The subject of this research is the key, dominant and most consistent development trends of the national constitutional law in post-Soviet period (1990’s – present). The author examines the following trends: succession, reception, internationalization and cyclicity of the development of constitutional law, as well as expansion and conceptual changes in its content. Each trend is substantiated by the provisions of constitutional legal doctrine, current Constitution, legislation and constitutional practice. The main conclusions consist in the thesis that the determined trends are inherent namely to the modern constitutional law, rather than Soviet or prerevolutionary stages of its development. Moreover, if separate trends coincide with the modern constitutional law of foreign countries, in Russia they have peculiar content, justified by the specificity of state legal development of the country. The evolution of Russian modern constitutional law takes place at the intersection of constitutional distinctness and constitutional universalization. Constitutional distinctness implies the synthesis of succession, certain cyclicity in the constitutional legal sphere, and presence of the unique legal phenomena characteristic to the national constitutional legal system. The manifestations of universalization of the modern Russian constitutional law include its reception and internationalization. 

DOI: 10.7256/2454-0706.2020.4.32263

Abstract: Due to the extensive changes introduced into the Civil Code of the Russian Federation in 2017, which affected the area of electronic payments, it is relevant to examine the problem and peculiarities of legal regulation of their separate type – payments without a bank account. The subject of this research is legislation of the Russian Federation, case law and doctrine in the area of establishment and development of legal regulation of payments on behalf of private entities without opening a bank account. The object of this research is the public relations emerging in the sphere of legal regulation of payments by payment orders. Analysis is conducted on correlation between payment orders and payments without opening a bank account. The article also examines the grounds for refusal by credit institutions to accept a payment order. The conclusion is made on the existence of discrepancies in understanding of particular grounds for refusal by credit institution to accept payer’s order on transferring funds to a recipient. The formulated conclusions are supported by the law enforcement practice that does not contain the exhaustive list of reasons for refusal. Therefore, the article offers an original interpretation of the Paragraph 2 of Section 2 of the Article 864 of the Civil Code of the Russian Federation stipulating the reasons for refusal to accept payment order for execution.

DOI: 10.7256/2454-0706.2020.4.32293

Abstract: The subject of this research is the norms of international legal acts, legislations of the EU member-states, decisions of foreign national courts, as well as decisions of the European Court on Human Rights and European Court of Justice. A hypothesis is advanced that within the framework of the European arrest warrant there are new trends associated namely with the desire to strengthen the system of protection of rights of the extradited individuals, which can negatively affect functionality of the procedure as a whole. Thus, a number of cases of the national courts (for example Artur Celmer case) and Court of the European Union (Pál Aranyosi and Robert Căldăraru case), as well as provisions of the constitutional courts lead to the fact that the principle of mutual recognition of court decision is used with caution. The article examines the case law of national courts of the EU member-states, as well as practice of the European Court of Justice and European arrest warrant. The author compared the decisions of the aforementioned courts for confirming the hypothesis that the protection of extradited individuals plays a significant role in the context of operation of the European arrest warrant. The intention to provide legal guarantees to individuals extradited in the context of the European arrest warrant, which loses its main influence; particularly the procedure is interrupted due to absence of guarantees of protection of rights in case of extradition, as well as raises doubt towards judicial systems and their decisions of some EU member-states brought forth by political actions of these countries. Moreover, protection of rights and guarantee of fair trial increases.

DOI: 10.7256/2454-0706.2020.4.32196

Abstract: This article analyzes the controversial issues of attributing the right of access to justice to the principles of criminal process. The author meticulously examines the origin of the right of access to justice in the Article 52 of the Constitution of the Russian Federation. The subject of this research is the norms of Russian and foreign legislation regulating the right of access to justice in criminal process. The object is the legal relations emerging in implementation of the right of access to justice. The article explores regulation of the right of access to justice in legislation of the Russian Federation and CIS member-states. It is demonstrated that the right of access to justice possesses certain characteristics that allow attributing it to the principles of criminal process: it represents an objective legal category that reflects the dominant in society political, legal and ethical ideas, and is most common legal provision in relation to other norms of law. A conclusion is substantiated that absence of the right of access to justice in criminal procedural legislation is a unique case of a gap in the principle of law.

DOI: 10.7256/2454-0706.2020.4.32385

Abstract: The subject of this research is the study of the work of appellate courts of general jurisdiction on revision of criminal cases in higher jurisdiction courts based on the position of their of their geographical location on the territory of the Russian Federation. The five newly formed appellate courts of general jurisdiction do not fully contribute to realization of such principle of criminal procedure as independence of judges, as well as adherence to the requirements on directness and oral nature of judicial proceedings. The goal of this article is to examine the positions of the current appellate courts of general jurisdiction from geographical perspective. For a deeper examination of the appellate peculiarity, the scientific research into this problem was carried out with consideration of the geographical specificity of the territory of Russia and its regions, and thus the level of development of logistical infrastructure in the constituent entities of the Russian Federation. The scientific novelty consists in the original proposal for creation of twelve appellate courts of general jurisdiction throughout the territory of the Russian Federation with their permanent placement in cities not currently handled by other judicial institutions of higher jurisdiction. Such new approach should fully the citizens’ right to access justice, and also ensure the principle of independence of judges.

DOI: 10.7256/2454-0706.2020.4.31069

Abstract: This article is dedicated to examination of the system of legal norms determining the legal status of minors in the process of regulation of labor relations in the Russian Federation. The goal consists in the analysis of content of the legal status of minor citizens within the system of regulation of labor relations. The work solves the following tasks: determination and analysis of the elements of legal status of minors within the system of regulation of labor relations; systematization of the norms of labor law, the effect of which is defined by ensuring guarantees of minors’ rights; identification of the problems of ensuring legal status of minors within the system of regulation of labor relations; formulation of recommendations on improving legislation in this regard; as well as designation of promising directions for research in this area. The novelty consists in expansion of the circle of labor law subjects, whose status depends on honoring guarantees of the citizens under 18 years of age. Comprehensive analysis is conducted on the norms of labor law that protect the rights of minors. The article highlights the relevant problems of legal regulation, namely: legal status of employees under 14 years old, their parents and underage employers; protection of rights of underage workers; legislative allocation of separate categories of underage workers; legal regulation of permit to work with minors. The author suggests introducing additional requirements for the workers under 14 years old, as well as persons authorized to work with minors.

DOI: 10.7256/2454-0706.2020.4.30929

Abstract: This article presents a brief analysis of the current norms of civil law in the Russian Federation, practice of their implementation, sources of the Roman private law, and norms of foreign law for the purpose of determination of the subject of obligation that emerges as a result of provision of statement about circumstances. The question of correspondence of such obligation to the criterion of validity is being addressed. The provisions of legal doctrine with regards to structure, essence and content of obligation, as well as approaches of legal technique and history of Roman law are used for argumentation of the main conclusions of this research. As a result, the author was able to formulate the subject of obligation that emerges on the basis of statement about circumstances. Obligations characterized by such subject are detected in the Roman private law and modern German legislation. The acquired results allow concluding that obligation due to provision of statement about circumstances is not an extraneous element of the system of civil law of the Russian Federation.

DOI: 10.7256/2454-0706.2020.4.32313

Abstract: This article analyzes the question of missing a 30-day deadline by a consumer for filing a claim against a financial institution stipulated by the Part 3 of the Article 25 of the Federal Law of June 4, 2018 No.123-FZ “On the Commissioner for the Rights of Consumers of Financial Services”. The paper examines the positions of current legislation on financial ombudsman, procedural provisions on possibility of reinstatement of the expired deadline for filing a claim, and clarification of procedural consequences in a case where such term would not be reinstated. Methodology of this theoretical study consists in comparative-legal analysis, systemic-structural analysis, synthesis, and analogy. The author examines the question of order of assessment by the court of the claim made by a consumer of financial services for reinstatement of the expired deadline for making a claim with the court against an insurance company, similar to the subject of requirements expressed in their address to the financial ombudsman. Substantiation is made on the conclusion that such claims are subject to hearing by a judge alone at the stage of acceptance of claim filing without holding a court session.