Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law最新文献

{"title":"How to ensure witness immunity for jurors in appellate proceedings?","authors":"I. Smirnova, G. Nebratenko, M. Kazarina","doi":"10.17223/22253513/47/6","DOIUrl":"https://doi.org/10.17223/22253513/47/6","url":null,"abstract":"Criminal procedural form is understood by scientists as the conditions, sequence of procedural actions and procedural decisions, rules of investigation, procedural activities of the subjects of investigation, rituals of criminal proceedings. It creates a strict and detailed legal regime for criminal proceedings. In this regard, the legal position of the Constitutional Court of the Russian Federation, set out in its judgment of 07 July 2020 No. 33-P, is of interest. The Constitutional Court of the Russian Federation has proposed new constructions (forms) of juror's communication with the court: For the court of appeal it is envisaged to invite a juror to the court session to receive from him/her information on alleged violations of the criminal procedure law during the discussion and pronouncement of the verdict. The Constitutional Court of the Russian Federation emphasised that such an invitation is only possible without giving the summoned person the procedural status of a witness. An analysis of a number of appellate determinations on this group of issues showed the emergence of new forms: 1. Hearing the explanations of the senior jurors. 2. Receiving written explanations from the senior jurors. 3. Conducting the verification by the Court of Appeal by questioning the alternate jurors. 4. Obtaining an opinion on the results of the performance review. 5. Verification of information from the explanations of the jurors received by the lawyer, inviting the jurors and providing them with information. It should be also noted that the configuration envisaged by the said decree \"does not fit\" into the criminal procedure form in several other aspects. As mentioned above, a juror is not granted the procedural status of a witness. However, the issue of reluctance of a juror to appear in court to give any explanations and the impossibility to bring him/her is still open. The question arises as to how long the juror's status remains after the verdict is announced and when this civic duty should be considered fulfilled. However, based on the understanding of the criminal procedure form as the totality of such inherent elements as its objectives, principles and functions, it may be stated that a jury does not fulfil the function of justice any longer. Consequently, the impossibility to attribute to them the function of witnesses is not that clear-cut. The procedure of obtaining and the final status of information obtained from jurors is also questionable. The court practice referred to such information as explanations, possible explanations and questioning. Thus, Decision No. 33-P has not only failed to resolve the problem of establishing the circumstances related to violation of the criminal procedure law in the court of appeal through jury trial but has also raised questions as to the criminal procedure form of such involvement.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"17 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75158987","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":"Socio-cultural preconditions for the cult of aggression and destructive processes among young people","authors":"A. Detkov, M. Starodubtseva","doi":"10.17223/22253513/46/2","DOIUrl":"https://doi.org/10.17223/22253513/46/2","url":null,"abstract":"The article analyses the socio-cultural preconditions of the cult of aggression and destructive processes in the modern youth environment. The authors point out that the ongoing global hybrid war of information is using the levers of mass culture for its own purposes. The Internet has become one of its main spokespeople and its main advantage - the high speed of spontaneous dissemination of information. In essence, it is about the purposeful formation of a new type of terrorist by the ideologists of terrorist organizations through the distortion of consciousness and worldview. Further the authors specify the marked chronological sequence of application to Russian youth of technologies of management of masses from 2014 to 2021. Such technologies have been organically incorporated into mass Internet culture, not least because of the new ideal of young people - the anti-hero who challenges the system and destroys their enemies exclusively by force. In society today there is a desire for individualism, for isolation. Instead of critical analysis, cliched thinking, born and bred by a crisis of ideals, dominates today. An example is the now booming genre of superhero cinema. Bright heroes in equally bright and grotesque costumes battle some alien evil, destroying half of their own world along the way. It's a dumbing down of sensuality, a domination of form over content, a cliched shell that hides a reverse morality of permissiveness. And this is one of the tenets of terrorist movements and destructive ideologies. In order to confirm these theses, the authors conducted criminological research aimed at identifying the causes of the distortion of the moral image of modern society and moral categories in mass culture. The relationship between the moral values of individuals and their impact on the crime situation in society was studied. The study was conducted among teachers and students of the College of Altai State University. The respondents were also teachers from the Department of Criminal Law and Criminology at the Law Institute and the Department of Social Philosophy, Ontology and Theory of Knowledge at the Institute of Mass Communication, Philosophy and Political Science. A total of 330 respondents, aged 18-25 (students), 30-45 (teachers) were randomly sampled. The results confirmed the authors' hypothesis that the cult of power propagated by the mass media provoked a spontaneous social contamination, which was met by a surge of violent acts of a terrorist nature. Hybrid confrontation between states and uncontrolled, and often encouraged, terrorist activities in the digital sphere have given rise to an aggressive ideal of the hero of our time. Combating this triad requires a solid ideological basis in the anti-terrorist sphere, created through the joint efforts of the state and civil society institutions. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"37 1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78014974","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":"Crimes against the sexual inviolability of minors in the Republic of Kazakhstan and their latency","authors":"N. Abdramanova, E. O. Alaukhanov","doi":"10.17223/22253513/47/1","DOIUrl":"https://doi.org/10.17223/22253513/47/1","url":null,"abstract":"The article is devoted to the problems of sexual offences against minors and their latency in the territory of the Republic of Kazakhstan. Sexual and sexual crimes against minors are deliberate actions that infringe on the sexual inviolability, normal moral and physical development of minors, persons who have not reached the age of majority and are protected by the laws of the state. Criminal sexual encroachments on minors, including their own children, represent the highest degree of public danger, which is manifested not only in the danger of such actions at the time of their commission, but also in their consequences. The paper examines the complexities of detection and recording of this category of crime. The authors conduct an analysis of statistical indicators of crimes against sexual inviolability of minors for the period from 2013 to 2020 according to the official data provided by the Committee of Legal Statistics and special records of the General Prosecutor's Office of the Republic of Kazakhstan. Thus, according to CPSSU, the increase in the number of rapes committed against minors in the territory of the Republic of Kazakhstan in 2020 compared to the previous year was 47.4%, the increase in violent acts of sexual nature against minors - 12.7%, corrupting minors - 1.8%. However, the crime rate under Article 122 of the Criminal Code (sexual intercourse or other acts of a sexual nature with a person under 16 years of age) decreased by 14.8%. These data make us doubt and, at the same time, link and explain this increase in latent crime. The authors study other official data relating to these types of socially dangerous acts in order to obtain information about their real scale. The authors also seek to identify, through processing and analysis of the results of sociological research, the reasons why victims of these offences are afraid to make contact with the law enforcement agencies. To study the problems of child sexual abuse and to identify the causes and extent of its latency, in February 2021 a sociological survey was conducted in the form of an anonymous questionnaire along with school psychologists among teenagers aged 14 to 18 years old and Kazakh citizens aged 20 years and older via SMS. The total number of students was 50, and, the total number of citizens over the age of 20 was 50. In conclusion, the authors conclude on the basis of their research that the level of latency of crimes against sexual integrity of minors in the Republic of Kazakhstan is very high.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"55 6 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90779595","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":"Merch-products and merchandise-activity as objects of civil rights in the impression economy","authors":"P. Likhter","doi":"10.17223/22253513/46/12","DOIUrl":"https://doi.org/10.17223/22253513/46/12","url":null,"abstract":"Today, such objects of civil legal relations, such as merch-products (stylized clothing, attributes) and merchandise-activity, are becoming increasingly important, that is, visiting thematic parks, quests and other activities, allowing you to plunge into the world of your favorite films and books. Consumers are not enough to receive standardized goods, they need impressions that meet their unique aesthetic and cultural preferences. The article discusses the legal aspects of the phenomenon of fan activity and related issues of protection of intellectual rights. According to the resuits of the article, the urgency of the doctrine of fair use is noted, according to which the free dissemination of the results of intellectual activity during merchandis activity is allowed, if it contributes to the development of arts and cultural progress. Currently, however, neither the Civil Code of the Russian Federation nor any other applicable regulation mentions concepts referring to merch or merchandise. Disputes relating to fan activity are governed by the general principles of civil law as well as by the provisions of Part 4 of the Russian Civil Code dealing with copyright or trademark protection. For example, according to Article 1482 of the Civil Code of the Russian Federation, verbal, pictorial, volumetric and other designations may be registered as trademarks. Accordingly, under Russian law, local producers of confectionery products may also be sued for selling cakes with an image of Cinderella or Bambi by representatives of the rights holder of the relevant trademark. However, the application of the general provisions of the Civil Code to obligations arising from such unique objects of civil legal relations as children's parties, quests, participation in theme camps, role-playing games or other merchandising activities has certain peculiarities. The protection of exclusive rights in these markets must take into account the goals of stimulating innovation and cultural and technological progress. In our country, the three-step test is partly enshrined in Part 5 of Article 1229 of the Civil Code of the Russian Federation, according to which the use of the results of intellectual activity is allowed without the consent of the right holders if it does not cause unjustified damage to the ordinary use of intellectual property or otherwise infringe upon the legitimate interests of the right holders. In addition, Article 1274 of the Civil Code permits free use of the work for informational, scientific, educational or cultural purposes. Consequently, merchandising activity cannot be recognised as infringing the interests of right holders because, based on the systematic interpretation of Articles 1229 and 1274 of the Civil Code of the Russian Federation, a fan reworking does not displace the original work from circulation. The author declares no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"69 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86128242","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":"Patron-client relations in the system of public authorities of Russia","authors":"S. V. Vedyashkin, E. A. Glukhov","doi":"10.17223/22253513/47/3","DOIUrl":"https://doi.org/10.17223/22253513/47/3","url":null,"abstract":"In the Russian legal system, the phenomenon of favoritism in the public service system is given extremely little attention. In legal science, there is an opinion about the illegality of this phenomenon and its negative impact on society and the state. Without denying this statement, the author, nevertheless, tried to consider it from different sides and to identify, in addition to the negative, also the positive qualities of favoritism. Only some cases of favoritism in cases of granting property benefits are covered by corruption relations; in other cases, it falls out of legislative prohibitions and restrictions. It is very difficult to prove the identification of non-formal relations between the manager and his protege, the influence of deviation from formal rules on the effectiveness of management as a whole. The objectives of the study were to analyze the positive and negative aspects of management in the system of patron-client relations among the management level of employees of public management bodies. The author presents standard forms of influence on subordinates in order to release their positions for people close to the new head, suggests directions for improving the legislation on the conduct of state and municipal service. When preparing the article, the methods of formal logic were used-comparison, description, classification, analysis, synthesis, etc., which allowed us to characterize the existing system of appointment to positions of state employees. Among the private scientific methods, the formal-legal method used in the analysis of the power positions of officials was used; the logical-legal method, through which the content of legal norms in relation to the problem under consideration was investigated; specifically, the sociological method used in the analysis of statistical data related to the problems of the study. In conclusion, the author draws conclusions about the effectiveness of the activity of the authority in the presence of the head's favorites, suggests ways to improve the legislation regarding the legal relations under consideration.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"61 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84668959","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 rights of convicts in correctional institutions: restrictions and provision","authors":"V. Utkin","doi":"10.17223/22253513/46/7","DOIUrl":"https://doi.org/10.17223/22253513/46/7","url":null,"abstract":"The theory of criminal and penal (executive-labour) law has historically developed two main approaches to the definition of deprivation of liberty. The first one, which, conventionally speaking, can be called 'substantive', consists of attempts to exhaustively establish the entire set (legal substance) of personal law restrictions, the set of which forms the legal content of this punishment. As noted above, attempts have also failed to achieve the objective, as the enumeration of many specific restrictions has always ended with disclaimers such as \"etc.\". Other scholars, whose approach can be termed 'attributive', have prioritised and continue to prioritise the inherent institutional 'attribute' of a custodial sentence - a special state institution that ensures isolation under guard . The legislator's approach is contradictory. On the one hand, based on the general definition of punishment (Part 1 of Article 43 of the CC), it demonstrates a 'substantive' one. On the other hand, it is 'attributive', saying that deprivation of liberty \"consists in the isolation of the convicted person from society by sending him to a settlement colony, placement in an educational colony, a medical correctional institution, a penal colony of general, strict or special regime, or a prison (Article 56 of the CC)\". The situation is similar in the Penal Enforcement Code of the Russian Federation. The General Part (part 2 of Art. 10) states that \"in the execution of punishments the convicted shall be guaranteed the rights and freedoms of citizens of the Russian Federation with the exceptions and restrictions established by the criminal, criminal-executive legislation of the Russian Federation\", which in general corresponds to part 3 of Article 55 of the Constitution. 3 Art. 55 of the Constitution and part 1 Art. 43 of the CC, but in comparison with the latter the range of legal sources of these restrictions is significantly expanded: Art. 43 speaks about the restrictions established only by \"the Code,\" while the Penal Enforcement Code also speaks about the \"criminal-executive and other legislation. In any case, within the meaning of part 1 of Article 2 of the CEC, this should be a source at the level of a federal law. In addition, part 4 of Article 10 of the CEC provides that \"the rights and obligations of convicted persons shall be determined by this Code on the basis of the procedure and conditions of serving a particular type of punishment\". The practice of prosecutorial supervision also does not recognize the \"demands\" of the prosecutor in the field of criminal execution, and prosecutors include them in acts of inspection, protests and submissions [7, p. 116]. The \"demands\" as forms of prosecutorial response are not reflected in the statistics of the Russian Federal Penitentiary Service. According to its data, in 2021 prosecutors issued only 23615 acts (in 2020 - 22755). These included representations (71% and 69%, respectively) and protests (18.5% and 20%, respectiv","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"24 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89255459","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":"Abuse of Law as a Legal Factor of European Disintegration","authors":"V. Subochev, M. Kulikov","doi":"10.17223/22253513/46/6","DOIUrl":"https://doi.org/10.17223/22253513/46/6","url":null,"abstract":"The alarming processes taking place in the EU today are indicative of the multifaceted and protracted crisis of European integration. Numerous academic papers traditionally and thoroughly explore the legal, financial, economic, political and social factors which facilitate the disintegration processes within the EU. Nevertheless, voluminous scientific researches of the factors, mentioned above, clearly bypass and underestimate the phenomenon of abuse of law which is in reality inextricably linked with them. Moreover, it is precisely the abuse of law which is underlying cause of many of those problems that today pose a real threat to the development of the EU. Despite the fact that the prohibition of abuse of law is enshrined in various documents that define the very existence of the European Union, an analysis of actual law enforcement processes and interpretation of law procedures as well indicates a flagrant disregard for numerous cases of abuse of law on behalf of the competent authorities. The most common form of abuse of law in the EU is the abuse of right to freedom of speech, which results in hate speech, bellicose and xenophobic statements, which have become widely spread European practice today. The abuse of the right to free collection, analysis and dissemination of information, backed by the abuse of the right to freedom of expression, also has a lot of negative manifestations that not only divide the European society itself, but also negatively attune representatives of other states towards the EU. This also involves a full-scale process of distorting historical truth and justice, numerous U-turns in the deeply-rooted attitude towards famous and legendary historical figures, etc. The abuse of the right that guarantees the equality of people regardless of gender, race, nationality, property status, attitude to religion and other circumstances is especially acute. A distorted understanding of this right and, as a result, abuse of it results in various manifestations of social racism - intolerant attitudes of people from different strata of society towards each other. Other consequences of abuse of law include: ambivalent legal regulation of migration processes within the EU and the policy of double standards; the EU's use of protectionist policies to support its markets; continuation of an active sanctions policy towards Russia. Apart from that, it is precisely the abuse of law that underlies the detabuization of many social prohibitions that have been formed for centuries in civilized societies and are responsible for its moral image. This entails a moral crisis in relations in modern Europe, which inevitably weakens the attractiveness of the European priorities themselves. Abuse of law results in general permissiveness, oversaturation of society with pathogenic information, misunderstanding of democracy and, as a consequence, leads to the exhaustion of unified and effective approaches to solving common European problems. The authors d","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"190 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72781760","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":"Consideration of the characteristics of juvenile delinquency in police prevention activities","authors":"L. M. Prozumentov, A. V. Shesler","doi":"10.17223/22253513/47/5","DOIUrl":"https://doi.org/10.17223/22253513/47/5","url":null,"abstract":"The article points out the shortcomings in the activities of the police for the prevention of group offenses of minors. Among them are the following: prevention does not take into account the changing subject of activity of groups of juvenile offenders depending on social processes in society, as well as the changing system of communication links in these communities, the transition from real contacts between group members to virtual communication using digital technologies; prevention is focused mainly on small and unstable groups of juvenile delinquents, the specifics of communication links and the subject of criminal activity of stable criminal groups are not taken into account; police bodies do not interact enough with other subjects of general and special prevention of juvenile delinquency, primarily in terms of information exchange; police activities are focused mainly on supervising the activities of members of groups consisting of on preventive accounting; low activity of police officers to identify adults who involve underage members of groups in committing crimes and antisocial actions. These shortcomings in the activities of the police predetermined the relevant proposals to improve the prevention of group crimes of minors, which include the following. 1. Police officers should take into account the subject of activity of groups of juvenile offenders changing under the influence of social processes in society in order to determine the priorities of preventive impact. 2. The police should be focused not only on working with ordinary groups of juvenile offenders (unstable and small in number), but also with stable criminal groups that are focused mainly on committing mercenary crimes and that are resistant to preventive effects. 3. Police bodies should interact more intensively with other subjects of general and special prevention of juvenile delinquency, primarily in terms of information exchange. This allows the police to more fully present the properties of groups of juvenile offenders who are an independent and specific object of prevention, to implement preventive measures agreed with these subjects. 4. The activities of the police should not be limited to registering groups of juvenile offenders, supervising their participants who are on preventive registration, and conducting preventive conversations with them. It is necessary to use all forms of preventive influence provided for by Article 17 of Federal Law No. 182-FZ of June 23, 2016 \"On the basics of the system of crime prevention in the Russian Federation\" within the limits of their powers. 5. Police officers need to step up their activities to identify and bring to criminal responsibility adults who involve underage members of groups in committing crimes and anti-social actions.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"31 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78755579","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":"Administrative and judicial discretion in Russian Science: problems of correlation","authors":"Stanislav V. Shchepalov, D. I. Zaitsev","doi":"10.17223/22253513/46/8","DOIUrl":"https://doi.org/10.17223/22253513/46/8","url":null,"abstract":"The article compares the views of Russian scholars on the problem of correlation between administrative and judicial discretion. The authors describe academic approaches to such issues as the scope of discretionary powers belonging to the executive and judicial authorities, types (spheres) of legal activity, within which administrative and judicial discretion, as well as administrative and judicial arbitrariness are implemented. Based on the positions of Russian researchers the authors offer their own vision of the concept of \"scope of discretion\" - in narrow and broad sense. In the narrow sense, this concept refers to the limits of discretion (boundaries of discretion), and in the broad sense - to the totality of discretionary powers exercised by the subjects of discretion. Thus, in a narrow sense, the term 'discretionary powers' covers qualitative (vertical) parameters of discretion, and in a broad sense, quantitative (horizontal) parameters. Further it is shown that in domestic legal science there are two approaches to the scope of discretionary powers belonging to administrative and judicial authorities. The first approach is that the discretion of executive power bodies has a smaller volume in comparison to that of judicial power bodies. The second is that the discretion of the executive is greater than that of the judiciary. It is argued that a comparison between the scope of discretion vested in the executive and the judiciary based solely on a narrow interpretation of the concept will necessarily pose a problem for the conceptual and categorical apparatus. If a broad interpretation is used, it becomes clear that in qualitative terms judicial discretion is many times greater than administrative discretion and in quantitative terms it is radically inferior. The authors then ask the question: within what types (spheres) of legal activity are administrative and judicial discretion exercised? There are several main answers to this question in Russian legal science. Some researchers believe that administrative and judicial discretion are implemented solely as a law enforcement activity; others believe that administrative discretion is a law enforcement activity, and judicial discretion can be both a law enforcement and law making activity; others believe that judicial discretion, as opposed to administrative discretion, is implemented solely in the process of law enforcement. The authors of this article show that the answer to the question of legal discretion is determined by the problem of the scope of discretion. If we argue that administrative and judicial discretion are equally exercised in law enforcement and/or law-making activities, this means that their scope (in qualitative terms) is identical. Meanwhile, as discussed above, the court should always have greater discretionary \"powers\" than the administration. Any concept that violates this inequality is therefore wrong. As for the other positions, they may or may not be accurate, but th","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"87 5 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86439760","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":"Impossibility of Performance of an Obligation under the Napoleonic Code of 1804","authors":"E. S. Terdi, D. Tuzov","doi":"10.17223/22253513/46/14","DOIUrl":"https://doi.org/10.17223/22253513/46/14","url":null,"abstract":"The article is devoted to the description of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804. Authors compare the latter with the Pandect, Anglo-Saxon, Uniform and Russian models of impossibility of performance of an obligation. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The aim of the article is to reveal the promising directions for the development of Russian civil legislation on the basis of detailed analysis of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804 in comparison with another models of this legal institute (Pandect, Anglo-Saxon, Uniform models). The aim of the research determines its methodology, which is based on historical legal and comparative legal analysis mainly. The authors analyze the provisions of the Napoleonic Code of 1804 on the impossibility of performance of an obligation in comparison with both the relevant norms of the civil legislation of other foreign countries, and the norms of the Civil Code of Russia, taking into account the practice of their application. The prerequisites for the reform of the French law of obligations in 2016 in the relevant part are established. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The authors declare no conflicts of interests.","PeriodicalId":41435,"journal":{"name":"Vestnik Tomskogo Gosudarstvennogo Universiteta-Pravo-Tomsk State University Journal of Law","volume":"1 1","pages":""},"PeriodicalIF":0.1,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72636014","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}