{"title":"The social significance of the regulation of non-cri- minal acts in the criminal law","authors":"D. A. Gаrbatovich","doi":"10.37399/2686-9241.2021.1.51-68","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.1.51-68","url":null,"abstract":"Introduction. In science, it is already proved that the effectiveness of criminal legislation in relation to crime prevention is very limited. The criminal law is objectively unable to eliminate the causes of crime due to their social nature. Nevertheless, the regulation of non-criminal acts is a socially significant area of criminal law policy that helps to resolve or reduce the painful difficulties that arise in the process of law-making and law enforcement activities in relation to the criminal law. Theoretical Basis. Methods. The theoretical basis of the research is based on Russian doctrinal sources devoted to modern concepts of criminal policy, forms and means of its implementation, and the social consequences of mitigating or toughening criminal repression. Results. The social importance of the regulation of non-criminal legal acts is determined by the ability to resolve three central problems. Firstly law-making activities when determining the boundaries of criminalisation. Secondly, maintaining human resources to implement repressive penal policy. Thirdly conservation of the economic resource, as the impact of penal policy and define ensuring the principle of inevitability of criminal responsibility and alternative ways to resolve a criminal law conflict. This includes the possibility of self-defense of individual rights by means of criminal law. Discussion and Conclusion. Regulation of non-criminal acts is a kind of “safety mechanism” of criminal law policy. It is a means of protection against excessive criminalisation, a means of ensuring compliance of legislative formulas with the realities of life, and a means of ensuring a balance between lawmaking and law enforcement.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"37 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":"122035032","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 measures to protect public legal interests in the civil process","authors":"S. Burmistrova","doi":"10.37399/2686-9241.2021.1.69-85","DOIUrl":"https://doi.org/10.37399/2686-9241.2021.1.69-85","url":null,"abstract":"Introduction. The civil legislation of Russia has a list of general ways to protect civil rights. There is comprehensive list of ways to protect public-law subjective rights and interests either in legislation or in legal science. As a result, some methods of protection that are explicitly named in the law are widely used in practice and have been sufficiently studied in science, while others that do not have direct legislative support are little or practically not used in practice, which leads to weak protection of rights and interests that could be protected by such methods. Theoretical Basis. Methods. In order to make the most complete list of the methods of protecting public-law subjective rights and interests and, if possible, bring such methods into the system, the author of the article proceeded from the following ideas: – social interests regulated by law (legal interests) have a different probability of achieving the object (the social good they are aimed at) and are divided into three categories, namely interests with a maximum (subjective rights), minimum (legitimate interests) and intermediate probability of achieving the object (legitimate interests that can be transformed into subjective rights by an act of law enforcement); – legal interests in the implementation process go through a number of stages, each of which can be violated in a special way. Knowing what constitutes a violation in each of the stages, allows an accurate choice of a method of protection from the range of availale measures; – the importance of implementing legal interests for the society is not the same. General (public) significance leads to the fact that the interest is regulated by public law. The private significance of an interest entails its regulation by private law. Results. It is argued that public and private entities can be carriers of public legal interests. It is proved that relations arising from the implementation of public-legal interests can be based on subordination or equality, and therefore the subjects of public-legal relations can have a powerful, subordinate and equal status. The article presents a system of measures and measures that should be applied in cases of violations of public-legal interests of powerful, subordinate and equal participants in public-legal relations at various stages of the implementation of such interests. Discussion and Conclusion. The results obtained can serve as a basis for improving the procedural means of protection and proceedings for the protection of public legal interests.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"12 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":"134564610","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":"Joint Exercise of Sovereign Powers of the Member States of the European Union. The French Approach to Legal Understanding of the European Union","authors":"Pierre-Yves Monjal","doi":"10.37399/2686-9241.2020.4.77-108","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.77-108","url":null,"abstract":"Introduction. This article analyses the legal nature of the European Union (hereinafter referred to as the Union). The research presented in this article is based on two closely related theses. On the one hand, the Union is a legally qualifying entity, and on the other hand,the Unionists for a long time exercising legal (judicial) activism because they have been trying to form their own entity. Theoretical Basis. Methods. The object of the study is the legal identification of the Union and the semantic and conceptual category of ‘joint exercise of powers’. Taking into account the data from the analysis of doctrinal sources, Union law, applying the methodological tools of functionalism as a sociological and anthropological theory, which offers an explanation of the functioning of society based on elements that ensure stability, the author concludes that the stability manifest¬ed in the independence of the Union leads to the opposite effect – a break with the democratic foundations of states that united in the Union, yielding part of their sovereignty. Results. The author of the article concludes that the peculiarity of the Union lies in the particular way in which it exercises the state powers delegated to it. What distinguishes it from other categories of international governmental organisations is not so much the accumulation of powers, their scope and multipolarity, but rather how they are exercised. In this context, Member States are faced not so much with the deprivation of national powers as with a new manifestation of shared sovereignty embodied in the concept of shared exercise of powers. Discussion and Conclusion. From a legal point of view, the Union is a unique, distinctive legal and political entity. The Member States rejected the federal (state-legal) form of the Union. It cannot be reduced to an international intergovernmental organisation, although it borrows much from this legal category. The Union has many specific features in economic, political and legal terms that characterise it as a special subject of public international law. The concept of the Union reflects the legal traditions of the Member States. The author summarises in the article that French legal doctrine has been able to offer a theoretical vision of the Union in terms of the particularities of its political-legal culture. The author therefore believes that the joint exercise of powers is a tool that reveals the essence of the Union. This makes it difficult for France, which has a very developed concept of national sovereignty, to legal understanding of nature of the Union.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128109243","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":"History of the Formation of the Institute of Copyright","authors":"M. Karelina, N. Buzova","doi":"10.37399/2686-9241.2020.4.153-175","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.153-175","url":null,"abstract":"Introduction. The history of copyright is closely linked to changes in society and the development of social relations in it. A paradigm shift in society leads to a change in attitudes to creative work and its results. The identification of common historical patterns allows us not only to better under¬stand the problems arising in copyright, but also to determine the trends of further development. Materials and Methods. The article analyzes foreign and Russian legislation on copyright in its historical context, starting from the Censorship Statute of 1828, the Copyright Law of 1911 and ending with the Civil Code of the Russian Federation. We also consider the works of well-known Russian legal researchers and foreign thinkers devoted to copyright and creative activity of the author. Results. Despite the fact that it is generally assumed that copyright belongs to civil law institutions, in certain historical periods, the relationship between the author and users, as well as society as a whole, has public legal aspects. The most frequent change in public-law and private-law approaches is observed in Russian copyright, which is due to political and economic changes that have taken place in the state. Discussion and Conclusion. Currently, society is facing another paradigm shift. The emergence of new technologies has given impetus not only to the use of copyright objects, including in infor¬mation and telecommunications networks, but also for the transformation of interaction between the author, the user and the state in connection with the extraction of a positive effect from the use of creative results. It seems that the active introduction of new technologies, for example, artificial intelligence, should not lead to the dominant influence of the state on copyright relations and overregulation of copyright.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126193075","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":"Proportionality and Rationality","authors":"R. Alexy","doi":"10.37399/2686-9241.2020.4.197-215","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.197-215","url":null,"abstract":"The article sets out the author’s concept of proportionality, on the basis of which the Federal Constitutional Court of the Federal Republic of Germany is able to make rational and reasoned decisions on the revision of legislation relating to violations of constitutional rights, which the author qualifies as constitutional principles. The concepts of proportionality and rationality are built on the conceptual and categorical apparatus formulated in other works by the author, which includes such concepts as norms, rules, principles, optimization, the Law of Balancing and others. The Law of Balancing is a specific form of applying the principles of law. The paper uses a broad analytical approach to the issues under study, and therefore its content is abundant in formulas. Using the formulas, the author analyses court cases on various issues that relate to violations of constitutional rights. The author’s opinions and conclusions are of interest to Russian legal science and court practice.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"343 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122836445","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":"Legal State is the Goal of the Rule of Law","authors":"V. Ershov","doi":"10.37399/2686-9241.2020.4.109-130","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.109-130","url":null,"abstract":"Introduction. The term “legal state” can be found in numerous international and national legal instruments, as well as in the works of contemporary scholars and scholars of previous generations. This word combination is widely used by politicians and lawyers. Its various applications dictate the need for a definition of the essence of the “rule of law” and its manifestations. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which only principles and norms of law contained in a single, multilevel and developing system of national and international law forms implemented in the state, the article concludes that it is theoretically debatable that in the special literature, international and national legal documents and legal acts two separate concepts of “rule of law” and “legal state” exist. Results. The notion of the rule of law has a long history of development. In the relevant context, the concept appeared as early as in the writings of Plato and Aristotle. At present, there are also many scientific works devoted to the study of this issue, which is still relevant. The article analyses the notion of the “rule of law” from the perspective of legal positivism as well as the scientifically grounded and scientifically debatable concept of integrative legal understanding. Based on the results of the study, the author concludes that the concept of “the rule of law” has evolved in different historical epochs under the influence of social, economic factors, emerging scientific views, but is still incomplete. From the perspective of the scientifically based concept of an integrative legal understanding, the author believes that it is theoretically more reasonable to view the rule of law as the goal of regulating legal relations in a legal state, self-limited not only by “internal” law, but also limited by “external” law. Discussion and Conclusion. Concepts of the rule of law according to the types of legal understanding of the researchers can be classified into concepts developed on the basis of: legal positivism (‘thin’ concepts; scientifically debatable concepts of integrative legal understanding, arguably synthesising both the right and the wrong); scientifically substantiated concepts of integrative legal understanding. According to the latter approach, a valid legal state is not only self-limited by “internal” law, but is also limited by “external” law, and theoretically more precisely by the principles and norms of law contained in a single, evolving and multilevel system of national and international law forms.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129875976","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":"Sentencing to Life Imprisonment","authors":"M. Tuliglovich","doi":"10.37399/2686-9241.2020.4.44-61","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.44-61","url":null,"abstract":"Introduction. After declaring a moratorium on the death penalty in Russia life imprisonment has turned to be the most severe of the applied criminal punishments. In order to respect the rights and interests of all parties of the criminal process, the court when passing a sentence shall con¬sider all the characteristic features of this kind of imprisonment. Taking into account the processes of self-organization, the lack of common approaches to the imprisonment for life in law, the use of evaluation categories that are not explained in the prac¬tice of the highest court, as well as the presence of gaps in certain provisions of the criminal law, leads to the fact that the courts in different regions in text justify and substantiate the sentence of life imprisonment form their own experience. The problem of sentencing in the form of life imprisonment has become the subject of the article. The author’s approach is based on the analysis of the first instance courts sentences and the examination of their features. Theoretical Basis. Methods. The work is carried out with the use of such general scientific research methods as comparative legal, dialectical, formal legal, and hermeneutical methods are applied. The above methods are used in conjunction in order to obtain a synergistic effect of the research. Results. When passing a life sentence, it is important to describe thoroughly the exceptional dan¬ger of the defendant. Failure to comply with this requirement may result in the cancellation of the sentence. The author also analyzes the circumstances that are to preclude the possibility of life imprisonment, deals with the features of life verdict in the case of a combination of crimes or sen¬tences in the particular situation, takes up the questions of determining the type of correctional facility for a person sentenced to this type of punishment. Discussion and Conclusion. Based on the author’s research, the article offers legal options for describing the exceptional danger of the person committed the crime, reflecting in the sentence the punishment imposed for a combination of crimes and sentences, one of which is life impris¬onment.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124382877","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":"Culture and Criminalisation: Interdependence and Mutual Influence","authors":"N. V. Genryh","doi":"10.37399/2686-9241.2020.4.176-196","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.176-196","url":null,"abstract":"Introduction. The relationship between criminal law and culture does not often attract the attention of domestic specialists. Few of the available studies are devoted primarily to the protection of cultural values. Much less often we find works devoted to the socio-cultural conditioning of the criminal law prohibition. However, the integral complex of issues of the relationship between the criminalisation of socially dangerous acts and culture has not yet been presented as an independent object of study, although it is an important research field of criminal-political research. Theoretical Basis. Methods. The research is based on two basic theoretical concepts. Firstly the concept of criminalisation of socially dangerous acts as developed in criminal law science and secondly, the normative theory of culture. Research methods used were analytical, axiological, and systemic. Results. Criminalisation, being a cultural phenomenon in itself, is closely related to other cultural phenomena and processes, which makes it possible to consider criminal law as one of the means of supporting cultural norms. Processes of criminalisation are not only directly influenced by cultural stereotypes and political culture in terms of determining the content of a criminal law prohibition. Criminalisation also has the opposite effect on culture. In particular, it can be used to supplant cultural norms that do not correspond to modern ideas about an ideal society, to preserve the norms and rules that it needs at the moment, to establish cultural norms, conceivable as promising models of social structure, to block individual cultural innovations. Discussion and Conclusion. The study of the relationship between criminalisation and culture opens up broad prospects for discussing the quality of criminal law and normative modeling of socially approved behavior. It serves as additional evidence that crime is a social and cultural construct, that is, an act with relative danger. This is an assessment that can vary with the dynamics of cultural norms. It also proves the inadmissibility of the gross use of legal means (secondary elements of culture) for the formation and imposition of cultural standards.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132502573","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":"Correlation of the concepts of “Terrorism” and “International Terrorism” in International Law","authors":"N. A. Cherniadeva","doi":"10.37399/2686-9241.2020.4.62-76","DOIUrl":"https://doi.org/10.37399/2686-9241.2020.4.62-76","url":null,"abstract":"Introduction. The problem of parallel use of two related terms in the legal documents of the UN system and other international organizations: “terrorism” and “international terrorism” is analyzed in the article. A clear understanding of the relationship of these terms is absent in the theory of international law. In addition, the distinctive features of “international terrorism” are not formulated in international legal instruments. Therefore, it is difficult to build a legal model of “international terrorism” and to distinguish it from related legal phenomena. Theoretical Basis. Methods. The author analyzes the doctrinal views of scientists in international law and the approaches related to the legal nature of terrorism and international terrorism, which are implemented in international legal documents. The task of defining the criteria for distinguishing terrorism and international terrorism in international law is posed in this article. The article presents a systematic study based on the methods used in legal science. The method of generalization plays a major role at the stage of research and evaluation of the concepts of “terrorism” and “international terrorism” in the universal anti-terrorist conventions. The method of ascent from the particular to the abstract will reveal the most common features inherent in the legal content of the term “international terrorism”. This method makes it possible to establish how “international terrorism” is understood in international legal instruments and the doctrine of international law. Also, the method of formal legal analysis is applied in the study. Results. The main scientific approaches to the correlation of the concepts of “terrorism” and “international terrorism” in international law are disclosed in the work. The author shows that all approaches fit into two models: supporters of the first distinguish these concepts and believe that international law should fight only against international terrorism; supporters of the second believe that international law should fight against any manifestations of terrorism. Discussion and Conclusion. The author formulates arguments in favor of establishing in international law a system of regulations aimed at combating a wide range of manifestations of terrorism.","PeriodicalId":184770,"journal":{"name":"Pravosudie / Justice","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127477261","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}
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