Pravosudie / Justice最新文献

{"title":"Individual Freedoms (Civil Liberties) in a Health and Climate Crisis: Reflections on the Totalising Ideology of Human Rights","authors":"Pierre-Yves Monjal","doi":"10.37399/2686-9241.2021.2.17-61","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.17-61","url":null,"abstract":"Introduction. The article analyses the problem of the restriction of human rights and freedoms in the modern conditions of the environmental and health crisis created by the COVID-19 pandemic. Theoretical Basis. Methods. The study uses a formal and dogmatic approach to the analysis of the normative legal framework of the European system of human rights and freedoms. A comparative legal analysis made it possible to identify both the general and the specific as regards the restriction of rights and freedoms in the states of the European Union. The article presents an analysis of the decisions of the Court of Justice of the European Union, and the High Courts of both France and Germany that were rendered in connection with the environmental crisis and the COVID-19 pandemic Results. The starting point for the author’s analysis of the research topic is the classic conclu- sion that human rights have experienced a golden age since the late 1960s with the end of the communist utopia and the establishment of the model of liberal democracy. In the social sphere, the emancipation of morality freed a person from social and family structures that determined his place and role in the family and society. In the economic sphere, the neo-liberal revolution made it possible to fully realise economic freedoms. The European legal system has accompanied and implemented this golden age. COVID-19 and the environmental crisis have led to unprecedented restrictions on the exercise of rights and freedoms. Discussion and Conclusion. The foregoing has allowed us to draw the following conclusions. Hu- man rights are ideology. Like any ideology, its goal is totalising. As soon as we leave the field of law (a normative approach) in order to use law to promote values (an axiological approach), ad- vocates of human rights and freedoms finally abandon serious legal science. The totality of free- doms has become somewhat conditional. By standardising their methods, their implementation will depend on a set of permanent and universal constraints. A new paradigm of human rights and freedoms has emerged, which is built around “rights-duties”.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131221177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Iustitia est Fundamentum Regni (Justice is the Foundation of the State)","authors":"V. Kornev","doi":"10.37399/2686-9241.2021.1.8-13","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.1.8-13","url":null,"abstract":"","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133582383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pension Provision for Judges in the Russian Empire","authors":"Sergey A. Toropkin","doi":"10.37399/2686-9241.2021.2.189-204","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.189-204","url":null,"abstract":"Introduction. Pension provision is one of the institutions which ensure the implementation of the principle of independence and impartiality of judges. The reform of the modern judicial institutions should take into account the accumulated historical experience of creating and developing both state and non-state pension mechanisms. The analysis of the genesis of pension legal relations in autocratic Russia allows us to understand the essence and purpose of modern institutions of post-service provision for judges, as well as to obtain a scientific basis for the ongoing transformations of the pension system as a whole. Theoretical Basis. Methods. The purpose of the research is to identify patterns and factors of creation and development of pension institutions for judicial employees in autocratic Russia. To achieve this goal, the following tasks were investigated: an analysis of the causes of the emergence and transformation of state pension institutions for Russian judges in the period from the XVII to the beginning of the XX centuries, the study of the system of emerital pensions of the Ministry of Justice of the Russian Empire, other non-state methods of pension provision, and the determination of functional characteristics of pensions of judicial employees in the specified period. In the course of the research a dialectical method of scientific knowledge was used, from the standpoint of which the reforms of the pension system and related legal norms were considered comprehensively, in development, interrelation and interaction with other phenomena of social and political life. General scientific (analysis, synthesis, deduction, induction, analogy, system- structural, functional, etc.) and specific scientific (formal-legal, comparative law, philological) methods were based on the dialectical method. Results. As a result of the research, the following conclusions were made: the pension system as a form of post-service provision for judges gradually replaced the system of feedings and estates as the rewards for service. Starting with one-time appointments of pensions personally by the monarch, the pension system gradually began to cover all civil servants. At the same time, seniority pensions in the autocracy could be received not only by judges, but also by other employees of the court apparatus. Additional pension guarantees for judicial employees appeared after the creation of the emerital Fund of the Ministry of Justice of the Russian Empire, as well as The Committee for the Charity of Honoured Civil Servants. Pensions in autocratic Russia had a broad function, including stimulating long-term honest service and preventing corrupt behavior. Discussion and Conclusion. State pension provision in Russia has always been an important element in the system of other legal incentives attracting the most talented lawyers to work in the courts. Of all forms of material security for judges, pension provision is the most conducive to conscientious public s","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123525267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corruption as a Global Problem of the Modern World: A Review of Scientific Publications","authors":"E. Ryabtseva","doi":"10.37399/2686-9241.2021.2.205-220","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.205-220","url":null,"abstract":"Introduction. Corruption is a complex multidimensional phenomenon that negatively affects all spheres of life within the state and its society. Despite the fact that corruption has been known since the times of ancient China, the study and scientific analysis of the causes and consequenc- es of corruption began to be dealt with only in recent years. Theoretical Basis. Methods. Modern scientific research methods were used, devoted to the defi- nition of the essence of corruption, methods of its prevention, its detection and the elimination of various forms of corruption. The determination of corruption on the basis of one of the scientif- ic approaches: political, economic, social, legal, etc. The interdisciplinary approach used in the work is based on various methods, including comparative legal, structural and functional, infor- mational and a number of others, which made it possible to draw reliable conclusions based on the results of the study. Results. The presented review of scientific publications allows us to combine the results of re- search in various branches of science for a deeper understanding of the essence of corruption, the degree and nature of the influence of corruption as to the structure and functioning of gov- ernment bodies, the development of civil society institutions, and the provision of economic and social guarantees of citizens. The article summarises certain results obtained in the field of sci- entific research on the problems of corruption. Discussion and Conclusion. Scientifically grounded conclusions and proposals contained in the works of scientists from different countries make it possible to systematically recognise cor- ruption as a global international problem, since they present a “global picture of corruption”, as well as to show in detail its individual elements. This makes it possible to substantiate univer- sal methods of preventing corruption, taking into account national characteristics of individual states.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122843738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Encroachments against the Safety of Maritime Navigation in Russian and International Criminal Law","authors":"M. L. Prokhorova, Anastasiya K. Knyaz’kina, Valentina N. Kufleva","doi":"10.37399/2686-9241.2021.2.172-188","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.172-188","url":null,"abstract":"Introduction. The necessity of criminalising acts against the safety of maritime navigation in na- tional legislation is based on the requirement to comply with the international obligations. The relevance of the research is that the implementation of such criminalisation is not always carried out in a timely and adequate manner. Тhe author’s versions of the criminal law can be used by the legislator to further improve the Criminal Code. Theoretical Basis. Methods. The methodological basis of the study was a set of both general scientific and private scientific methods of cognition. In particular these included the analysis, synthesis, comparative, formal and the legal. Special attention was paid to the international legal standards, and the regulation of criminal liability for encroachments against security sea shipping. Results. The article analyses the regulations at the national level governing the crime of acts which infringe upon the safety of navigation at sea and in the river space. This is Art. 211 “Hijacking of an aircraft or water transport or railway rolling stock” and Art. 227 “Piracy” as provided for in the Criminal Code of the Russian Federation. The article considers the provisions corresponding to these from international treaties, and investigates the problems of compliance in implementing norms of the Russian criminal law with the basic contractual provisions. At the same time, international acts are analysed in their latest and current version, taking into account all the changes and additions made to them. Discussion and Conclusion. As a result of the study, the authors come to the conclusion that it is necessary to make alterations to the national criminal legislation to bring it in line with the current international standards due to the absence of provisions in it regarding liability for crimes committed against sea vessels, as well as on board or against fixed platforms located on the continental shelf. At the same time, the authors propose specific additions to the Criminal Code of the Russian Federation. In particular, these are on the inclusion of certain signs of corpus delicti relating to the number of qualifying items, and which also indicate the need to formulate specific criminal law norms providing for liability for crimes against sea vessels, as well as on board or against fixed platforms located on the continental shelf.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"21 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120824378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Special Rules for Imposing Punishment: Conceptual Framework and Problems of Interaction","authors":"L. Prokhorov, Valeriya V. Poltavets, Elena A. Yelets","doi":"10.37399/2686-9241.2021.2.117-138","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.117-138","url":null,"abstract":"Introduction. The article is devoted to a comprehensive study of the conceptual foundations of the institution of the special rules for assigning punishment and the mechanism of the interaction of those punishments. Looked at through the prism of the signs of system formation, their essence and boundaries, their legal nature and the purposes of applying these rules are made clearly visible. This study also investigates the problems of the interaction of special rules for their appointment both among themselves as well as with other structural units of the institution of sentencing. Theoretical Basis. Methods. The methods were selected based on an understanding of the goals, objectives and the object of the research. The methodological basis of the work is a set of both general scientific and specific scientific methods of the cognition of social and legal phenomena. These are the analysis, synthesis, induction, deduction, system-structural, comparative-legal, historical-legal, and formal-legal methods. Results. The article is devoted to a comprehensive study of the conceptual foundations of the in- stitution of special sentencing rules. Their essence is revealed through the prism of system-form- ing features, their circle, content and legal nature, and the purpose of applying these rules are specified. The problems of interaction of special rules of appointment both among themselves and with other structural units of the institution of sentencing are also investigated. Discussion and Conclusion. On the basis of this study, the distinctive features of the special rules for the assignment of punishment are established, Using this, the author formulates a definition, according to which the special rules for the assignment of punishment are the rules provided for in the criminal and criminal procedure code of the Russian Federation, and which are applied by the court in the process of individualising the punishment to the guilty person. This needs to take take into account the understanding of the characteristics of the committed crime, the identity of the perpetrator and the specifics of the implemented form of criminal proceedings. Finally, a conclusion is made about the relative independence of the above rules, which is confirmed not only by their separate consolidation in the Criminal Code of the Russian Federation, but also by the presence of iinherent features which allow them to be distinguished from general principles, principles and other rules for assigning punishment. The ratio of general and special rules is due to the specifics of the application, the interaction of the named rules, and their influence on the choice of the punishment and their functional purpose.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121483365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federalism. The Origins and Ways of its Development in the History of the USA and Brazil","authors":"P. Ramos, Pedro N. M. Viana","doi":"10.37399/2686-9241.2021.2.62-79","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.62-79","url":null,"abstract":"Introduction. This article analyses the historical aspects of the formation of the foundations of fe- deralism as a constitutional principle, as well as its origins and development in the United States of America and Brazil. Theoretical Basis. Methods. The study of law, legislation, and doctrine related to American and Brazilian federalism was undertaken. The study of Brazilian and foreign scientific works was car- ried out on the basis of an interdisciplinary comparative study from the standpoint of legal theory. Results. The result is the comparison of the American and Brazilian models of federalism with the analysis of some definitions of the concept of federation, as well as its specificity in Brazil in the modern period. The authors of this study intended to highlight the development of federalism in Brazil, touching upon the aspects of Brazilian federalism as reflected in the 1988 Constitution. Discussion and Conclusion. The analysis of the Brazilian Constitution shows such features as the plurality of the constituent entities of the state forming a federation. Brazilian federalism is also characterised by the principle of non-interference, which means that the Union cannot in- terfere in the affairs of the member states, and the states, in turn, cannot interfere in the affairs of the municipalities.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130571853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the Temporal Problems of Implementing an Extraordinary Method of Protecting the Rights of Bankruptcy Creditors","authors":"M. Patsatsiya","doi":"10.37399/2686-9241.2021.2.154-171","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.2.154-171","url":null,"abstract":"Introduction. The abolishment of a judicial act, which has entered into legal force, especially after a significant period of time, may occur in only exceptional cases. Otherwise, it contradicts the ap- proaches of the European Court of Human Rights and the Constitutional Court of Russia to the general requirement for legal certainty as regards res judicata. Exceptional cases include those relating to ensuring the right to a fair trial. The past judicial enforcement experience in modern Russia has shown that bankruptcy credi- tors, who believe that their rights have been violated by a judicial act, on which a claim filed by another person in a bankruptcy case is based, previously did not have any procedural defense mechanism. That was the case until one was introduced that would allow them to appeal such a judicial act if they believed that the claim, filed on its basis in a bankruptcy case, was based on an invalid transaction or lacks foundation due to the unreliability of evidence. This is so even in situ- ation where these judicial acts may have been adopted in cases in which they did not participate. The current judicial practice, however, shows that it is often impossible for them to protect their rights due to the incorrect understanding of the rules for calculating and/or restoring the term of appeal, as established in parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation. Theoretical Basis. Methods. The methodological basis of the work was the dialectical method. Such general scientific, private scientific legal and special methods of scientific knowledge inherent in the procedural sciences as the analysis and the synthesis, induction and deduction, dogmatic, comparative legal, and teleological methods, as well as the analysis and the generalisation of judicial practice have been used. Results. The article highlights the three most common erroneous, in the author’s opinion, approaches of courts to calculating and/or restoring the term of appeal. Discussion and Conclusion. Based on the results of the evaluation of the erroneous approaches, four major claims are formulated against them. These are based on the interpretation of the norms of parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation which corresponds to the tasks and principles of judicial proceedings in arbitration courts. The claims are based on the explanations of the Supreme Court of Russia related to the issue under consideration, its conclusions on specific cases, as well as the provisions of the decisions of the lower supervisory instances which deserve support. On this basis, the most realistic options for correcting judicial practice are indicated, which are absolutely necessary to ensure the right to a fair trial.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131294313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Signs of the Subject of a Crime under Article 243.2 of the Criminal Code of the Russian Federation","authors":"I. A. Khalikov","doi":"10.37399/2686-9241.2021.1.113-127","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.1.113-127","url":null,"abstract":"Introduction. When studying history, the results of the work of archaeologists play a significant role. At the same time, for science, only those studies that are conducted by scientists on the basis of a state-issued permit (the so called open sheet) are of value. In accordance with the permit, scientists are required to provide reports on the excavations carried out and information about the objects found. This is what distinguishes professional archaeologists from non- professional history enthusiasts. Such enthusiasts dig atr archaeological sites because of their interest, to create private collections and to sell items of historical value in antique markets. By their actions, they commit crimes against cultural heritage. This makes it necessary to study the characteristics of the subject of the crime provided for in art. 243.2 of the Criminal code of the Russian Federation in order for criminal officers to properly deal with crimes in the field of archeology. Theoretical Basis. Methods. The research is based on general scientific and special research methods. The theoretical base consists of the works of domestic and foreign scientists in the field of law, history, archaeology, as well as the experience of competent authorities in the field of cultural heritage preservation. Results. The analysis of the work of the competent authorities and the study of legal literature led to the conclusion about the problems associated with the attribution to the subject of crime of persons searching for archaeological objects without obtaining a state permit. Discussion and Conclusion. Taking into account the accumulated international experience of countering illegal archaeology, studying domestic law enforcement practice, it is concluded that it is necessary to clarify the characteristics of the subject of the crime by making changes to the disposition of part 1 of art. 243.2 of the Criminal code of the Russian Federation.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124783240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Forensic DNA Databases: International Experience and the Possibility of its Application in the Russian Federation","authors":"Andrei G. Semikhodskii","doi":"10.37399/2686-9241.2021.1.148-183","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.1.148-183","url":null,"abstract":"Introduction. The article highlights a number of topical issues involving the federal database of genomic information of the Russian Federation. Despite the fact that the expert application of fo- rensic DNA analysis began in the late 80s/early 90s of the twentieth century, the legal basis for the use of DNA for crime investigation does not meet the requirements of today. Theoretical Basis. Methods. The study is based on a comparative analysis of the legal framework of forensic genetic databases of foreign countries, especially the United Kingdom and the United States, and the Russian Federation. Results. Based on the experience of countries where forensic DNA databases have been creat- ed and are effectively used, the general legislative principles of organizing such databases are discussed. Crimes warranting genetic registration and the procedural category of persons from whom DNA samples should be taken for the database purposes are considered as well as the length of the retention period and criteria for deleting genetic information. The issues of quali- ty control and ethical use of genetic information for solving crimes are discussed separately. In conclusion, the need for a legislative initiative that will allow law enforcement agencies to have a genomic information database as an effective tool for combating crime is proposed. Discussion and Conclusion. The paper emphasises a need for legislative initiatives that would allow law enforcement agencies to have a genomic database as an effective tool for combating crime.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123951506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}