DOI: 10.25136/2409-7810.2023.3.43775

EDN: UHMLSO

Abstract: The article discusses the mechanism of administrative coercion, this issue is important from the point of view of the application of various measures of administrative influence. The importance of such a category as the "legal mechanism of administrative coercion" will be predetermined by its functionality in determining methods of coercive influence. The mechanism of application of administrative coercion may make it possible to balance private and public interests in the application of various measures of administrative coercion, as well as to avoid violations of the requirements of legality. The mechanism of administrative coercion is a kind of law enforcement (police) mechanism. Despite this, the mechanism of coercion has its own specifics. The author revealed the features of the mechanism of administrative coercion measures, gave a theoretical analysis of the elements of this mechanism. The paper draws attention to the fact that constructively the mechanism of administrative and legal regulation of the use of coercive measures includes the norms of law, legal relations, acts of application of the norms of law, as well as legal culture. Based on this, the author concludes that the mechanism of action of administrative coercion harmoniously includes both legal and non-legal elements, and the importance of the latter elements is also important for the effectiveness of the implementation of the coercion. The author concluded that the legal culture as an element of the mechanism of administrative coercion has not received a proper theoretical assessment.

DOI: 10.25136/2409-7810.2023.3.43967

EDN: VLDTBS

Abstract: The article discusses the possibility of the court, provided for in paragraph 5 of Part 2 of Article 281 of the Criminal Procedure Code of the Russian Federation, to make a decision on the disclosure of the testimony of witnesses and victims. This problem is investigated by the authors in the context of the fact that the parties should be given the opportunity to protect their interests by all means not prohibited by law, including challenging the read testimony and petitions for their verification with the help of other evidence, as well as by using other means that contribute to the prevention, detection and elimination of errors in court decisions. Based on the study of judicial practice, the authors consider the question of what is meant by the defendant's ability to challenge the testimony of a person testifying against him in ways not prohibited by law and whether it matters what position the defense takes on this issue. The article gives a critical assessment of the approach to solving this issue that has developed in law enforcement practice, which, in essence, "obliges" the defense party to file a petition for a confrontation in case of disagreement with the testimony of a witness. It is noted that this approach is obviously incorrect, and this position is justified. The authors come to the conclusion that depriving the defendant of the right to interrogate the participant showing against him is depriving him of the opportunity to demonstrate to the court the inconsistency of the testimony given by the victim or witness, which can become the key evidence underlying the court's conviction against the defendant. The authors of the article consider correct the position in which the court takes into account the non-confrontation between the accused and the victim, the witness at the stage of preliminary investigation as a circumstance preventing the disclosure of testimony, taking into account the position of the defense. The article evaluates proposals to improve the norms of criminal procedure legislation, taking into account the balance of interests of the parties.